Stored Communications Act: Cell Phone Images, Texts Not Protected

By Robyn Hagan Cain on December 14, 2012 | Last updated on March 21, 2019

Images and text messages store in a cell phone are not protected by the Stored Communications Act (SCA), according to the Fifth Circuit Court of Appeals.

Fanny Garcia, a former police dispatcher for the City of Laredo, Texas, was fired for violating department policy. The department based its decision on information obtained from Garcia's cell phone, which the department accessed without her permission. Garcia sued the city, arguing that the SCA protects all text and data stored on a personal cell phone. The courts disagreed.

In 2008, a Laredo police officer's wife removed Garcia's cell phone from an unlocked locker in a department substation, and accessed text messages and images. Believing she had discovered evidence of department policy violations, she presented text messages and images from Garcia's phone to city officials. Later, investigators successfully downloaded one video recording and 32 digital images from the phone; they were unable to download any of the text messages. A subsequent internal investigation concluded that Garcia had violated police department rules and regulations.

The SCA prohibits unauthorized access to wire and electronic communications in temporary and back-up storage, but the language is awkward. It prohibits intentionally accessing without authorization a facility through which an electronic communication service is provided.

Garcia argued that her personal cell phone was a "facility" in which electronic communication was kept in electronic storage, and that the city violated the SCA by accessing her phone. The district court disagreed, and granted summary judgment for the city.

Wednesday, the Fifth Circuit affirmed that decision, noting many federal courts agree that individual devices don't qualify as SCA facilities. Instead, "the relevant 'facilities' that the SCA was designed to protect are facilities that are operated by electronic communication service providers and used to store and maintain electronic storage."

The appellate court explained that, even if Garcia's cell phone were somehow considered a "facility," the text messages and pictures on her phone didn't fall within the definition of "electronic storage."

Electronic storage only encompasses the information that has been stored by an electronic communication service provider. Information that an individual stores to his hard drive or cell phone is not in electronic storage under the statute.

The Fifth Circuit concluded that an individual's personal cell phone doesn't provide an electronic communication service just because the device enables use of electronic communication services, and there is no evidence here that the city ever obtained any information from the cellular company or network. Accordingly, the text messages and photos stored on Garcia's phone were not in electronic storage under the SCA, and the city couldn't be held liable for an SCA violation.

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