From State v. Poling, 160 Ohio Misc. 2d 84, 2010 Ohio 542,; 2010 Ohio Misc. LEXIS 408 (Municipal Cort, Hocking County 2010):

The defendant is charged with a count of violating a *** civil protection order that was obtained in the Common Pleas Court of Hocking County by Jana Kaiser. The order prohibited the defendant from having contact with Jana or any member of her family, including her 16-year-old daughter, Stephanie.

On May 22, 2009, *** Jana asked Stephanie to walk the children down the block to their home. Stephanie left to escort the two young children [cousins] home. When she left, she did not log off the computer or shut anything down. While Stephanie was gone, Jana checked on her daughter's activities on the Internet. Jana copied several recent messages that had come to Stephanie's MySpace account. She then placed the copies into a file that Jana maintained on the computer. Later, Jana reviewed the items that she had copied. The items were messages between Stephanie and the defendant. Jana then went to the Hocking County Sheriffs Office to make a report. Deputy Trent Woodgeard took a report and filed a charge against Poling. ***

Our starting point is federal law. Ohio's statute as to the illegal interception of oral, wire, or electric communications found in R.C. 2933.51 very closely tracks the Federal Wire Tap Act, Title I of the Electronic Communications Privacy Act ("ECPA"), Section 2510 et seq., Title 18, U.S.Code.

However, it appears that the Federal Stored Communications Act ("SCA"), Title II of the Electronic Communications Privacy Act, Section 2701, Title 18, U.S.Code rather than Title I of the ECPA, Sections 2510 et seq., applies to the conduct at issue here. This is important because unlike the Wiretap Act (see Section 2515, Title 18, U.S.Code, prohibition of use as evidence), the SCA does not provide for the exclusion from evidence of material that has been unlawfully accessed. *** The SCA provides for civil damages and criminal punishment for its violation, see Sections 2701 and 2707, Title 18, U.S.Code, but unlike the Wiretap Act, it does not provide for the exclusion of evidence obtained illegally under the Act. See Section 2708, Title 18, U.S.Code (remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter); United States v. Ferguson (D.D.C. 2007), 508 F. Supp.2d 7 (SCA does not provide for suppression of evidence as a remedy); Thus, even if Jana's conduct had violated the SCA, the evidence in question is not subject to exclusion under the statute. ***

As explained in Bunnell v. Motion Picture Assn. of Am. (C.D.Cal. 2007), 567 F. Supp.2d 1148, 1152, for purposes of the ECPA, "at any given time, an electronic communication may either be intercepted and actionable under the Wiretap Act, or acquired while in electronic storage and actionable under SCA. An electronic communication may not simultaneously be actionable under both the Wiretap Act and the SCA." (Citation omitted.) Bunnell at 1152; see United States v. Szymuszkiewicz (June 30, 2009), E.D.Wis. No. 07-CA-171, 2009 WL 1873657, *9 (describing the process by which e-mails are sent and received and the history of the Wiretap Act and the SCA and their different applications). The majority of federal courts have concluded that because the Wiretap Act prohibits only the interception of transmissions and because the unauthorized access to e-mails is not accomplished through the interception of transmissions, the SCA rather than the Wiretap Act applies to such unauthorized access.

Cardinal Health 414, Inc. v. Adams (M.D.Tenn.2008), 582 F. Supp.2d 967, reached this same conclusion***.

[T]he court stated:

The Third, Fifth, Ninth, and Eleventh Circuits all agree that, for a communication to be "intercepted" under the FWA, that communication must be acquired during the "flight" of the communication. Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 113 (3rd Cir. 2003); U.S. v. Steiger, 318 F.3d 1039, 1047 (11th Cir.2003); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002); Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457, 463 (5th Cir. 1994). In support of this view, there is, of course, the ordinary dictionary definition of "intercept," which is "to stop, seize, or interrupt in progress or course before arrival." *** Also, there is the statutory history, which shows that Congress created the SCA for the express purpose of addressing "access to stored * * * electronic communications and transactional records." *** Also, until October 2001, the definition of "wire communication" in the FWA included information in electronic storage, such as a voicemail, but the definition of "electronic communication" in the FWA did not include information in electronic storage, indicating that something like an e-mail would not be covered by the FWA. *** Further, after 9/11, Congress amended the FWA to eliminate communications in electronic storage from the definition of "wire communication," further indicating a congressional intent that the FWA should be primarily concerned with information in active transport, not stored information. Id.

Id. at 979-980.

*** Cardinal Health 414 also referred to Bailey v. Bailey Feb. 6, 2008), E.D.Mich. No. 07-116-72, 2008 WL 324156, which had rejected a Wiretap Act claim brought by an ex-wife against her ex-husband. ***

For other similar recent cases, see Columbia Pictures, Inc. v. Bunnell (C.D.Cal. 2007), 245 F.R.D. 443 (communications are in electronic storage under the SCA, and thus outside the scope of the Wiretap Act, even when the storage is transitory and lasts only a few seconds); Pure Power Boot Camp v. Warrior Fitness Boot Camp (S.D.N.Y. 2008), 587 F. Supp. 2d 548 (unauthorized access to e-mails that had previously been sent or received did not constitute an "interception" of an electronic communication under the ECPA; however, employer's access of employee's personal e-mails, which were stored and accessed directly from accounts maintained by outside electronic communication service provider, was unauthorized and thus violated SCA); Evans v. Evans (N.C.App. 2005), 610 S.E.2d 264 (sexually explicit e-mails that wife had sent to physician, offered by husband in divorce action in support of grounds for divorce and in support of denying postseparation spousal support to wife, were not illegally intercepted in violation of ECPA, where interception of e-mails was not contemporaneous with transmission; e-mails were stored on and recovered from hard drive of family computer).