The case of Pietrylo v. Hillstone Restaurant Group, Docket No. 2:06-cv-05754 (D.N.J. 2008) enters its third day of testimony today. The case centers on allegations that Hillstone, the owner of a restaurant chain where Pietrylo was a server, violated the Electronic Communications Privacy Act (“ECPA”) when it accessed and monitored his Myspace.com account. I Blawged about the facts of this case on May 24.

Generally, under the ECPA, it is illegal to access and review stored communication on a computer facility that provides electronic communication services. 18 USCS § 2701. “Electronic communication service” is defined as the ability to send or receive electronic or wire communication. 18 USCS § 2510(15). At least one court has held that a home computer does not provide electronic communication services. In re Doubleclick Privacy Litig., 154 F. Supp. 2d 497, 511 (S.D.N.Y. 2001). Rather, the court in Doubleclick reasoned that the statute applies to only companies like AOL, or Juno, or perhaps even the telecommunication companies over whose wires electronic communication is transmitted. Other courts have applied the statute to cover companies that provide online email accounts, i.e. hotmail.com. Fischer v. Mt. Olive Lutheran Church, Inc., 207 F. Supp. 2d 914 (W.D. Wis. 2002). Mysapce.com is no different then hotmail; therefore, it is not surprising that Hillstone did not argue, and the court did not hold in the preliminary stages of the case, that the ECPA does not apply to information stored on a Myspace.com account.

Pietrylo’s has alleged in his complaint that his employer was not authorized to access his Myspace Web site and review material he has posted to that site. As I Blawged on  May 24, one argument which could untimely win the day for Hillstone is that it was granted permission to review Pietrylo’s Myspace.com account by a person who did have authorization to review the account. This case may answer a previously undecided question: does the ECPA permit a person who is authorized to review stored electronic communication to provide access to such information to a unauthorized person. If Hillstone prevails at trail it is because the court  believes the answer is yes. Next week, I will discus why I believe the answer should be yes.

Click here for a recent article I wrote on the ECPA that provides a more in depth discussion of the ECPA in the context of private employee email accounts viewed at work.