E-Commerce Law Week, Issue 589

Ohio Court Gives Criminals Another Reason to Love Their Smart (and Not-So-Smart) Phones

The Supreme Court of Ohio ruled last month in State v. Smith that the warrantless search of a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment.  The court refused to extend to cell phones the normal doctrine allowing police to search an arrestee’s person and containers found on or near him without obtaining a search warrant, holding that a cell phone is not a “closed container” because it does not hold other “physical objects.”  The court also found that cell phones’ “ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain,” and that police therefore must “obtain a warrant before intruding into the phone’s contents.”

When Is Football the Solution to a Marital Dispute?

When the dispute concerns the meaning of the Electronic Communications Privacy Act (ECPA).  In Global Policy Partners, LLC, v. Yessin, a federal court in Virginia recently held that a plaintiff had adequately stated claims under the Computer Fraud and Abuse Act (CFAA) and the Stored Communications Act (SCA) portion of ECPA when she alleged that her husband and business partner had accessed her work email account in order to review her communications with her divorce lawyer.  The court found that the plaintiff had sufficiently alleged that the defendant’s access to her email was unauthorized, and thus violative of both the CFAA and SCA, even though the defendant was a co-manager of the couple’s business, because there was no legitimate business reason for his actions.  The court dismissed the plaintiff’s claim under the Wiretap Act portion of ECPA, however, finding that the plaintiff had failed to allege that her emails were “intercepted” within the meaning of the Act.  And there the court earned its place in the sports metaphor hall of fame by invoking a football analogy to interpret the notoriously difficult ECPA.

CAN-SPAM Does Not Preempt Claim Under California Spam Law, Court Holds

Last month, in Asis Internet Services, et al., v. Subscriberbase, Inc., et al., a federal district court in California held that the CAN-SPAM Act does not preempt a claim under a California spam law even though such a claim does not require proof of all the elements of a common law fraud claim.  The court held, however, that this claim still must be pleaded with particularity, and that this means that plaintiffs must say something about the specifics of every email that they allege violated the California statute.

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