A personal cell phone is not a “facility” within the meaning of the Stored Communications Act—Navarro v. Verizon Wireless, L.L.C., 2013 WL 275977 (E.D. La. Jan.24, 2013)
A federal court in Louisiana recently ruled that a hacking and “sexting” victim could not sue under the Stored Communications Act (SCA). The plaintiff (Navarro) visited a cell phone store and accepted the offer from a Verizon sales associate to try a new cell phone model for two weeks. Navarro later returned the trial phone to the store and had a different Verizon sales associate (Stillwell) transfer data from the trial phone back to her phone. After leaving the store, she received a message on her phone from an unknown number. The message contained nude photographs of Navarro that she had taken using her phone’s camera. When Navarro’s mother confronted the manager of the cell phone store, Stillwell admitted that he copied the photos from Navarro’s phone for his own use and accidentally sent them to Navarro from his phone.
Navarro sued Verizon and the cell phone for violating the SCA, among other theories. She inadvertently omitted a claim for punitive damages under the SCA, however, and asked the court for permission to add such a claim. The defendants argued that the claim would be futile because a personal cell phone is not a “facility” under the SCA. Liability under the SCA requires the unauthorized intentional access of “a facility through which an electronic communication service is provided” to obtain, alter, or prevent “authorized access to a wire or electronic communication while it is in electronic storage in such system.” 18 U.S.C. § 2701(a).
The court agreed with the defendants. In a Fifth Circuit case, the court concluded that the SCA envisions regulation of network service providers (like Verizon). A home computer of an end user does not qualify for SCA protection. Relying on that case, the court ruled that a personal cell phone is not a “facility.” While a cell phone enables the use of an electronic communication service, it is not itself such a service. The information stored on a cell phone therefore is not in “electronic storage.” Navarro suggested that the defendants might have copied her photographs from a “cloud based” storage system run by Verizon, but there was no evidence of that, so the court rejected the theory. Navarro was denied permission to add a punitive damages claim under the SCA.