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Media Alerts - Sixth Circuit: WebWatcher software may violate Wiretap Act and unlawfully invade privacy
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October 10, 2016
  Sixth Circuit: WebWatcher software may violate Wiretap Act and unlawfully invade privacy
Case: Luis v. Zang

Area of law: Wiretap acts and privacy law

Issue presented: Does a software manufacturer violate privacy rights or federal/Ohio wiretap laws, which ban the monitoring and contemporaneous interception of communications, when the manufacturer's surreptitiously installed software transmits a home computer's electronic communications to the manufacturer's servers, where it is stored until the software user retrieves the communications later?

Brief summary: Joseph Zang, concerned about his wife's online chatroom participation, installed WebWatcher on his wife's computer without her knowledge or consent. He used this software to monitor her correspondences with a man she'd never met but contacted daily. He then used the WebWatcher contact records as leverage to secure more favorable divorce terms a year later. Javier Luis, who had regularly corresponded with Zang's wife through chatrooms, sued Zang and WebWatcher's manufacturer, Awareness Technologies, after learning of the disclosure of his private, personal communications with Zang's wife. Luis alleged that Awareness and Zang, through the use of WebWatcher, violated his privacy rights and also wiretap laws when WebWatcher intercepted his computer's electronic communications meant for Zang's wife and sent them to Awareness's servers for Zang to retrieve and read later.

The Sixth Circuit held that Luis had properly pleaded his claims - federal Wiretap Act violations, Ohio Wiretap Act violations, and Ohio common-law violations including privacy violations - against Awareness Technologies, and that the trial court's dismissal of the case was improper.

Extended summary: During Catherine Zang's marriage to Joseph Zang, she participated in an online chatroom where she "met" Javier Luis. They developed a platonic relationship and contacted each other at least daily, but they never met in person. Concerned with his wife's online relationship with Luis, Zang purchased and installed Webwatcher on Catherine's computer without her knowledge or consent. Webwatcher, manufactured by Awareness Technologies, intercepts electronic communications, such as emails or instant messages, and in near real time forwards them to Awareness's servers for storage and later retrieval. After collecting his wife's communications with Javier for months, Zang used them as leverage to get better divorce terms from his wife.

Luis sued Zang, Awareness, and others after learning of this. Luis settled with all but Awareness. In his complaint against Awareness, Luis alleged that Awareness knew or should have known that purchasers of its software, WebWatcher, would use it for illegal purposes. Thus, he asserted that Awareness violated his privacy as well as the federal Wiretap Act, the Ohio Wiretap Act, and Ohio common law.

During the case, a magistrate judge was directed to prepare a Report and Recommendation evaluating Awareness's arguments that it had not intercepted Catherine's communications and that it could not be held liable simply for manufacturing software that a purchaser used to violate federal and state laws. The district court adopted the Report and Recommendations and dismissed the claims against Awareness.

The Sixth Circuit reversed, holding that Luis had properly pleaded his claims against Awareness. The Sixth Circuit found that WebWatcher does intercept communications, as defined under the federal Wiretap Act, and acquires communications in a manner that is contemporaneous with their transmissions. Consequently, the allegations could support an eventual finding that Awareness violated the federal Wiretap Act. And the Sixth Circuit found that Luis sufficiently pleaded and argued that Awareness manufactured and sold wiretapping equipment in violation of federal law. Luis could establish that there was an intentional interception of wire, oral, or electronic communications by WebWatcher and Awareness. As such, Luis could potentially show that Awareness violated the Ohio Wiretap Act and Ohio common law. Last, Luis had properly pleaded that the WebWatcher software invaded his privacy when Zang installed it on his wife's computer and used the software's output to monitor his personal, private communications with Catherine.

Thus, the Sixth Circuit held that the trial court's dismissal of all claims was erroneous, and it remanded the case to the district court for reconsideration. The Sixth Circuit added, however, that no conclusions should be drawn on the ultimate outcome of this case, noting that Awareness might still prevail on a motion for summary judgment or at trial.

Panel: MERRITT, BATCHELDER, and GILMAN, Circuit Judges.

Date of issued opinion: August 16, 2016

Docket numbers: 14-3601

Decided: August 16, 2016

Decision: The judgment of the district court is therefore REVERSED and the case is REMANDED for further proceedings consistent with this opinion.

Counsel: Clayton L. Wiggins, VANDERBILT APPELLATE LITIGATION CLINIC,
Nashville, Tennessee, for Appellant. Bernard W. Wharton, MCCASLIN, IMBUS &
MCCASLIN, Cincinnati, Ohio, for Appellee. ON BRIEF: Clayton L. Wiggins, Alistair E.
Newbern, VANDERBILT APPELLATE LITIGATION CLINIC, Nashville, Tennessee, for
Appellant. Bernard W. Wharton, MCCASLIN, IMBUS & MCCASLIN, Cincinnati, Ohio, for
Appellee. Javier Luis, Tampa, Florida, pro se.

Author of opinion: GILMAN, J., delivered the opinion of the court in which MERRITT, J., joined. BATCHELDER, J. (pp. 33 - 37), delivered a separate dissenting opinion.

Case alert author: Peter J. Mancini, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.opn.ca6.uscourts.go...ns.pdf/16a0196p-06.pdf

    Posted By: Mark Cooney @ 10/10/2016 10:30 AM     6th Circuit  

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