Other Courts of Appeals have understood the Act in a
similar manner. In In re: Zynga Privacy Litigation, the Ninth
Circuit explained that the Act “covers access to electronic
information stored in third party computers.”100 So, too, the
Eleventh Circuit in United States v. Steiger, which held that
“the [Stored Communications Act] clearly applies, for
example, to information stored with a phone company,
Internet Service Provider (ISP), or electronic bulletin board
system,” but that the Act “does not appear to apply to the
[government’s] source’s hacking into [the plaintiff’s
personal] computer . . . because there is no evidence that [the]
computer maintained any ‘electronic communication
service[.]’”101 The plaintiffs point to various district court
decisions that have accepted that personal computers can be
protected “facilities” under the Stored Communications
Act.102 However, as another district court observes, these
decisions “provide little analysis on this point of law, instead
100
750 F.3d at 1104 (emphasis added).
101
318 F.3d 1039, 1049 (11th Cir. 2003). In Steiger, the
Eleventh Circuit noted that “reading . . . the Wiretap Act to
cover
only
real-time
interception
of
electronic
communications, together with the apparent non-applicability
of the [Stored Communications] Act to hacking into personal
computers to retrieve information stored therein, reveals a
legislative hiatus in the current laws purporting to protect
privacy in electronic communications.” Id.
102
E.g., Cousineau v. Microsoft Corp., 992 F. Supp. 2d 1116,
1125 (W.D. Wash. 2012) Expert Janitorial, LLC v. Williams,
2010 WL 908740, at *5 (E.D. Tenn. 2010); Chance v. Ave. A,
Inc., 165 F. Supp. 2d 1153, 1161 (W.D. Wash. 2001).
47
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