The Akron Legal News

Company can be held liable for intercepting online messages

ANNIE YAMSON
Special to the Legal News
Published: August 25, 2016

A divided federal court of appeals for the 6th Circuit ruled that a company that manufactures computer spying software can be held liable under state and federal wiretap acts.

According to an opinion written on behalf of the three-judge appellate panel’s majority by Judge Ronald Lee Gilman, Awareness Technologies Inc. possibly intruded on a Florida man’s privacy and violated the Wiretap Act when its product, WebWatcher, was used to intercept electronic communications which were then stored on the company’s servers.

The case stemmed from a lawsuit filed by Javier Luis, a resident of Florida.

According to a case summary, Luis developed an online, platonic personal relationship with Ohio resident Catherine Zang. Catherine’s husband, Joseph Zang, who was suspicious of his wife’s activities, installed WebWatcher on the couple’s home computer in order to monitor her communications.

Court documents state that the software used by Zang worked by intercepting online communications while they were being transmitted and then rerouting records of those messages to be stored on servers that the company maintained in California for later review by the user.

Zang eventually used the records of his wife’s communication with Luis as leverage to secure favorable terms in his divorce from her.

Upon learning that his communications were monitored, Luis filed suit against Zang, Awareness and several others. He settled all of the claims with the exception of those against Awareness, whom he contended violated the federal Wiretap Act, the Ohio Wiretap Act and Ohio Common Law.

Judge Susan Dlott of United States District Court for the Southern District of Ohio at Cincinnati ended up dismissing Luis’ complaint against Awareness, stating that he had failed to state a cause of action against the company.

But, on appeal from that judgment, the 6th Circuit court’s majority found that the district court failed to take into account the extent to which Awareness was engaged in the interception of personal messages.

According to Awareness, its product did not violate the Wiretap Act because WebWatcher does not “intercept” electronic communications within the meaning of the law.

But according to marketing materials for WebWatcher that were submitted with Luis’ claim, the software allows its users to review a person’s electronic communications “in near real time, even when the person is still using the computer.”

“The near real-time monitoring is significant,” Gilman wrote. “If a WebWatcher user can, in fact, review another person’s communications in near real time, then WebWatcher must be acquiring the communications and transferring them to Awareness’ servers as soon as the communications are sent.”

Since the program does not wait for the messages to be stored (WebWatcher’s marketing materials also state that messages are recorded and stored even if they are deleted on the receiving end) the court of appeals held that there is evidence that they are intercepted “in flight.”

The majority also noted that the district court was incorrect when it attributed sole liability to Zang, the user of WebWatcher.

“Where the district court erred was in failing to recognize that Luis alleges not only that Awareness manufactures and sells WebWatcher, but that, once installed on a computer, WebWatcher automatically acquires and transmits communications to servers that Awareness owns and maintains,” Gilman wrote.

Because WebWatcher functions with no input from a user after installation and relies on the maintenance of servers owned by Awareness, the majority held that Luis plausibly pleaded that Awareness intercepted his communications.

It also held that Luis sufficiently alleged facts supporting a cause of action against Awareness based on possible violations of federal and state wiretap acts and an invasion of privacy.

But the appellate panel also warned that its ruling does not necessarily assure victory for Luis.

“Awareness may yet prevail on summary judgment or at trial,” Gilman wrote. “For now, however, Luis’ claims are sufficient to survive Awareness’ motion to dismiss.”

Gilman was joined by Judge Gilbert Merritt to form the majority and reverse the judgment of the district court.

In her dissent, Judge Alice Batchelder held that WebWatcher may have intercepted communications within the meaning of the Wiretap Act, but that Luis’ complaint did not allege that Awareness itself intercepted his communications.

The case is cited Luis v. Zang, et al., case No. 14-3601.

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