Privacy Law

9th Circuit revives lawyer's suit against ex-husband for alleged email snooping

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A federal appeals court on Tuesday revived a Washington lawyer’s suit contending that her then-husband violated the Stored Communications Act by accessing her work emails.

The 9th U.S. Circuit Court of Appeals at San Francisco ruled for Andrea Clare, who claimed that her then-husband Kevin Clare used her thumbprint while sleeping to unlock her phone.

Law360 and Bloomberg Law have coverage of the Dec. 8 decision.

Kevin Clare allegedly accessed Clare’s work email account and forwarded emails to himself. Then, after the couple separated, Kevin Clare allegedly continued to access the emails on an iPad that had been shared during the marriage. Kevin Clare used some of the information to his advantage in divorce proceedings, Clare said in her suit.

At issue is whether the emails were stored “for purposes of backup protection” within the meaning of the Stored Communications Act. The 9th Circuit has held that the act requires a second backup copy of an email message to meet the definition.

The appeals court said the trial judge had wrongly excluded expert testimony that the work emails were regularly downloaded and stored on a private server as a backup. The testimony provided evidence of the kind of backup copy required by the 9th Circuit, the appeals court said.

The court said it was not ruling on Clare’s second argument—that email messages stored on her Microsoft Exchange account for backup purposes are protected by the Stored Communications Act. The issue is whether email messages maintained only on a web-based platform meet the backup storage definition.

Clare’s lawyer, George Telquist, told Law360 that his client has also filed a separate privacy lawsuit in Washington state court. He said the 9th Circuit ruling was significant.

“I don’t think by saying ‘I do’ you give up all of your rights to privacy,” Telquist told Law360.

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