Theofel v. Farey-Jones
- Court
- Court of Appeals for the Ninth Circuit (Federal circuit court)
- Decided
- 2003
- Citation
- 359 F.3d 1066 (9th Cir. 2003)
- Standard applied
- Stored Communications Act §§ 2701, 2707 — “electronic storage” and authorisation
What the court held
E-mail left on an ISP's server after delivery is in “electronic storage” under the Stored Communications Act as storage for purposes of backup protection, so prior access by the recipient is irrelevant to the Act's coverage. Access to those messages obtained through a patently overbroad civil subpoena was “without authorization,” because consent procured by deceit is no consent, and dismissal of the SCA claim was therefore error.
Why
The court rejected the argument that any copy capable of serving as a backup is necessarily stored for that purpose, and gave examples of messages an ISP holds that are not in electronic storage. On authorisation it reasoned from trespass principles: a party who gains entry by fraud has not been given permission, and the ISP's compliance with a subpoena so broad as to be invalid did not supply consent the user never gave.
Our reading — not the court’s words
Why this matters in practice
Theofel is the reason a civil subpoena to a provider is a poor route to an opponent's e-mail: serve one that is patently overbroad and the requester can become the defendant. It is also the leading authority for treating post-delivery webmail as protected under the SCA, which is why account content is ordinarily obtained from the party rather than the platform. For a practitioner the operative rule is that a provider's compliance is not a safe harbour if the process used to obtain it was invalid on its face.
This paragraph is Legal Cyber Academy’s editorial assessment of the decision’s practical importance. The court said none of it. For what the court actually said, read the opinion.
Additional detail
Tags: Stored Communications Act · subpoena abuse · webmail · electronic storage
Cited 88times in CourtListener’s corpus at the time this entry was compiled. Treat it as a rough measure of influence, not of correctness.
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Summarised from the opinion as retrieved from CourtListener. Reference material, not legal advice. Back to the repository.