Tom O'Toole points to a Fourth Circuit decision from today which holds that a Stored Communications Act Plaintiff must show actual damages in order to be entitled to recover the statutory minimum.  As Tom says "Ouch!" 

The factual backdrop of this lawsuit is pretty crazy.  The plaintiff was employed by Electronic Scriptorium Limited.  One of the principals of ESL allegedly engaged in inappropriate behavior and plaintiff brought a claim for harassment and a claim for unemployment benefits.  She didn't press her claim for harassment since ESL employed less than 15 people, but she prevailed on her claim for benefits.  Separately, ESL brought claims against plaintiff alleging a variety of business torts.  In the course of that lawsuit, ESL utilized evidence that was from plaintiff's personal AOL email account.  Once plaintiff realized this she pressed the situation, and ultimately ESL's principal admitted that he accessed her personal account ... several times.  In the court's words:

Leonard admitted to accessing Van Alstyne's AOL account at all hours of the day, from home and internet cafes, and from locales as diverse as London, Paris, and Hong Kong.  During discovery, Leonard produced copies of 258 different emails he had taken from Van Alstyne's AOL account.

Wow.  She brought claims against Lenoard (ESL's principal) and ESL alleging violations of the Stored Communications Act.  She withdrew any claim for actual damages and sought only to recover statutory damages.  (She withdrew the actual damages claim partially because she likely didn't want to face examination on emotional issues.)  Ultimately she prevailed at trial and defendants appealed, arguing that she was not entitled to recover because she failed to show actual damages.

The court agrees with defendants (only as to the damages - plaintiff gets to keep her punitive damages and her attorney's fees! the court remands the award of punitives and attorney's fees in light of the ruling on statutory damages).  As to the damages, the court looks to the statutory text and relevant supreme court authority and concludes that as clunky as the statutory damages provision in the SCA is, she could not recover statutory damages since she withdrew her claim for actual damages:

Like the Privacy Act, the SCA limits an award of damages to the "actual damages suffered," as well as "any profits," thus "ma[king] specific provision . . . for what a victim . . . may recover." Id. Furthermore, the SCA and Privacy Act contain the substantively identical following phrase: "but in no case shall a person entitled to recover receive less than the sum of $1,000," which "looks back to the immediately preceding provision for recovering actual damages." Id. Indeed, the only differences between the damages provisions in the two statutes is the SCA’s use of the term "suffered" instead of "sustained" and its use of the phrase "and any profits made by the violator." Neither difference, it seems to us, has any material impact. Thus, we are left to interpret statutory language in all important respects identical to that already interpreted by the Supreme Court. Our answer, it appears, should be obvious: just as the Privacy Act required proof of "actual damages" as a prerequisite to recovering statutory damages, so does the SCA.

I'm trying to think of other notable civil cases brought under the Stored Communications Act and what implications this will have for the more-everyday situation.  (The 9th Cir. bad subpoena case?  Yahoo censorship?  I don't think this will have any effect on CAN-SPAM cases since the statutory language is not really similar in this respect.)  Either way, the case recounts a crazy saga.  The employer's decision to sue the employee in this case definitely backfired in a big way. 

The case is Van Alstyne v. Electronic Scriptorium, Limited, et al. [pdf]; see also coverage from the "Laconic Law Blog."