Ninth Circuit Extends Scope of Electronic Communications Privacy Act to Foreign Citizens

http://ow.ly/6O3Fn

A blog post from Philip Favro from the eDiscovery 2.0 Blog.

This post discusses a specific case interpreting the Electronics Communications Privacy Act, "The Ninth Circuit unequivocally extended the protections of the Electronic Communications Privacy Act(“ECPA”) to foreign citizens yesterday. In Suzlon Energy Ltd. v. Microsoft Corp.— F.3d — (9th Cir. 2011), the court held that the ECPA protects the emails of non-citizens that are stored in the United States from disclosure."

The holding discussed a request to turn over a hotmail account belonging to an Indian citizen for litigation in Australia.  The author states, "...the court’s holding applies only to emails stored in the United States. It does not apply to information maintained or acts that occurred beyond the United States."

The author further states, "... the Ninth Circuit declined to create by judicial fiat a “civil litigation” exception that would allow the production of the emails. Such an exception would have eviscerated the privacy concerns regarding electronically stored communications that Congress specifically invoked in enacting the statute."  Furthermore, "The court also refused to find that the defendant’s status as a party to litigation constituted “implied consent” to the production of his Hotmail emails. Such a finding is consistent with other jurisprudence holding that participation in legal proceedings does not waive the protections of the ECPA."