(CN) - A police dispatcher in Texas whose bosses looked through her cellphone after a cop's wife sneaked it out of her locker cannot sue, the 5th Circuit ruled. Fannie Garcia had clamed that the Laredo Police Department and others violated the Stored Communications Act by going through her phone. During her time as a dispatcher for the department, Garcia was allegedly intimate with officer Gilbert Buenrostro, who was estranged from his wife Raquel. Garcia said Raquel harassed her about the affair for years and eventually broke into her locker at the police station to steal her phone. That phone contained dozens of sexually explicit text messages, photos and a video involving Garcia and the married officer, and Raquel downloaded them and shared them with officials in the police department, according to the complaint. Garcia said the department then opened an investigation and concluded, based in whole or in part on the materials from her phone, that Garcia violated department policy. She was fired in January 2009. Concluding, however, that the Stored Communications Act, or SCA, protects electronic communications stored in a "facility," U.S. District Judge Micaela Alvarez said that Garcia cannot apply the law to her cellphone, or individual computers for that matter. The New Orleans-based federal appeals court agreed last week. "For defendants to be liable under the SCA, they must have gained unauthorized access to a facility through which electronic communication services are provided (or the access must have exceeded the scope of authority given) and must thereby have accessed electronic communications while in storage," Judge W. Eugene Davis wrote for a three-judge panel (parentheses in original). The court found that Garcia tripped over the "facility" requirement, and that "information that an individual stores to his hard drive or cell phone is not in electronic storage under the statute." A more accurate description of electronic storage would involve an Internet service provider that backs up information to a server, the panel said. The court also disagreed with Garcia that Alvarez was impartial since he had criticized her counsel in granting summary judgment. "When viewed objectively, we find no facts in this record to cause a reasonable person to doubt Judge Alvarez's impartiality," Davis wrote.
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