Cyber Crime Review
Cyber Crime Review

November 2023


Ill. court reverses summary judgment grant in SCA case

Cyber CrimesCyber Crimes

An Illinois woman recently argued that her former employer violated the Stored Communications Act after they accessed her personal e-mail account. (Borchers v. Franciscan Tertiary the Sacred Heart, 2011 IL App 2d 101257 (Ill. App. Ct. 2012)). Two accounts were accessible on her computer – her personal and work e-mail, and the former employer connected to the personal account and printed 36 of the e-mails.

The trial court entered summary judgment. Not, as you might expect, for the plaintiff but instead for the employer, “finding that the plaintiff had not produced sufficient evidence that the defendants acted intentionally.”

As the Appellate Court of Illinois noted, intent “may be gleaned from circumstances and actions, not simply words.” The employee who searched the account testified that she thought the account was the plaintiff’s work e-mail. Despite that, she printed 36 e-mails that were clearly personal and had subject lines such as “Re: mom.” It’s also worth mentioning that the defendants were aware that the plaintiff had filed a sexual harassment lawsuit against them, and these printed e-mails were used in their response. Here’s some good language from the court:

The fact that Maxwell knew of the plaintiff’s sexual harassment charges against her employer is also relevant to the issue of intent: conduct is “more likely to be intentional when it serves a party’s self-interest to engage in such conduct.” … And, although the initial accessing of the AOL account could be viewed as innocent if Maxwell had immediately logged out of the account once she had seen that the in-box contained material not clearly related to work, that is not what happened here. Maxwell deliberately chose to click additional times to travel from the first screen she viewed, the in-box, to the portion of the AOL account displaying e-mails that the plaintiff had sent, actions that could be viewed as additional acts of “accessing” the plaintiff’s e-mails through the AOL “facility.”

The court held that in cases with similar facts, some courts have denied a summary judgment motion while others have used these facts to grant the plaintiff’s motion. Therefore, the court reversed the entry of summary judgment.

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