Is Your Personal Cell Phone Private?

Is Your Personal Cell Phone Private?

A Decision made by the Fifth Circuit Court of Appeals on December 12, 2012 affirms that images and text messages that are stored on personal cell phones are not protected by the Stored Communications Act (SCA). The purpose of the SCA is to prevent unauthorized access to wire and electronic communications in temporary and back-up storage.

The Appeal was made my Fanny Garcia, a former police dispatcher in Laredo, Texas who was fired for violating department policy based on text messages and images found on her personal cell phone. In November of 2008 a police officer’s wife took Garcia’s phone from an unlocked locker and found text messages and images that indicated Garcia had violated department policy. The woman brought the phone to higher ups in the police department and an internal investigation ensued leading to Garcia being terminated. Garcia subsequently sued the city alleging that the SCA protects all text messages and data stored on her personal cell phone.

The SCA indicates that “whoever intentionally accesses without authorization a facility through which an electronic communication service is provided or exceeds an authorization to access that facility and thereby alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.” Punishments for SCA violations include fines and possible imprisonment depending on how the offense is committed. The act defines “electronic communication service” as a service which provides to users the ability to send or receive wire or electronic communications. Electronic storage is defined as a “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.”

The court found that electronic storage only includes information that has been stored by an electronic communications provider and not information that an individual stores on their phone or hard drive. Therefore, the text messages and photos stored on Garcia’s personal cell phone were not within the scope of “electronic storage” as defined by the SCA. The courts decision concluded that the city would not be held liable for an SCA violation.

Read the decision here: Data-Stored-on-Cell-Phones-Not-Protected-Fed-Court-Rules121212

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