Email snooping can be intrusion upon seclusion

Analysis could also affect liability of enterprises using cloud computing technologies.

Steinbach v. Village of Forest Park, No. 06-4215, 2009 WL 2605283 (N.D. Ill. Aug. 25, 2009)

Local elected official Steinbach had an email account that was issued by the municipality. Third party Hostway provided the technology for the account. Steinbach logged in to her Hostway webmail account and noticed eleven messages from constituents had been forwarded by someone else to her political rival.

Steinbach sued the municipality, her political rival and an IT professional employed by the municipality. She brought numerous claims, including violation of the Federal Wiretap Act, the Stored Communications Act, and the Computer Fraud and Abuse Act. She also brought a claim under Illinois common law for intrusion upon seclusion, and the court’s treatment of this claim is of particular interest.

The defendant IT professional moved to dismiss the intrusion upon seclusion claim under Fed. R. Civ. P. 12(b)(6)(for failure to state a claim upon which relief can be granted). The court denied the motion.

The court looked to the case of Busse v. Motorola, Inc., 813 N.E.2d 1013 (Ill.App. 1st. Dist. 2004) for the elements of the tort of intrusion upon seclusion. These elements are:

  • defendant committed an unauthorized prying into the plaintiff’s seclusion;
  • the intrusion would be highly offensive to the reasonable person;
  • the matter intruded upon was private; and
  • the intrusion caused the plaintiff to suffer.

The defendant presented three arguments as to why the claim should fail, but the court rejected each of these. First, the defendant argued that the facts allegedly intruded upon were not inherently private facts such as plaintiff’s financial, medical or sexual life, or otherwise of an intimate personal nature. Whether the emails were actually private, the court held, was a matter of fact that could not be determined at the motion to dismiss stage. Plaintiff’s claim that emails from her constituents were private was not unreasonable.

The defendant next argued that Steinbach had not kept the facts in the email messages private. But the court soundly rejected this argument, stating that the defendant failed to explain how Steinbach displayed anything openly. Plaintiff asserted that she had an expectation of privacy in her email, and defendant cited no authority to the contrary.

Finally, the defendant argued that the intrusion was authorized, looking to language in the Federal Wiretap Act and the Stored Communications Act that states there is no violation when the provider of an electronic communication services intercepts or accesses the information. The court rejected this argument, finding that even though the municipality provided the email address to Steinbach, Hostway was the actual provider. The alleged invasion, therefore, was not authorized by statute.

The court’s analysis on this third point could have broader implications as more companies turn to cloud computing services rather than hosting those services in-house. In situations where an employer with an in-house provided system has no policy getting the employee’s consent to employer access to electronic communications on the system, the employer – as provider of the system – could plausibly argue that such access would be authorized nonetheless. But with the job of providing the services being delegated to a third party, as in the case of a cloud-hosted technology, the scope of this exclusion from liability is narrowed.

Email ribbon photo courtesy Flickr user Mzelle Biscotte under this Creative Commons License

4 thoughts on “Email snooping can be intrusion upon seclusion

  1. Laura Bergus

    Slightly off the cloud computing issue, but: Do you think as the case progresses that the court will deem the messages as "private"? Since Steinbach is an elected official, and the messages in question were on a municipally-issued account – surely this correspondence could have become public record? Is it the manner in which the emails were accessed and used that's the issue?

    At a municipality in Iowa where I was webmaster, I administered webmail accounts for elected officials and they were instructed that any and all correspondence using those accounts could and would see the light of day if someone asked. Do you think a policy like this — if Steinbach were instructed that here emails were, de facto, public — would make a difference to the court? Or, rather, if the defendant had argued access was allowed under open records laws instead of federal wiretap / stored communications law?

  2. jonst

    where did the author of this opinion (or more likely, his or her clerk) get their law degree? Do you believe that CFAA analysis? Could they get more things wrong?

  3. Joe

    The tech hosting company was just plain wrong here. What business do they have forwarding someone's e-mail to anyone else without their consent or knowledge?

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