Spying on a Spouse with WebWatcher Might Violate the Wiretap Act

iPadElectronic spy tools may have a place in the family home. Parents who want to keep track of a child might want to install an invisible app on the child’s cellphone that uses GPS to report the child’s location to an app on the parent’s cellphone. Parents who want to monitor their child’s internet use might install software on the child’s computer that secretly records and transmits the child’s browsing history, including chatroom transcripts.

Whether it is appropriate to use hidden technology for child protection is a question to which different parents might give different answers. More controversial is the use of technology by one spouse to spy on another. That controversy may expose both spouses and software makers to liability if they participate in spying that is analogous to electronic eavesdropping. A federal appellate court recently decided that a software company could be held liable if it intercepted emails or chats on behalf of its customer.

WebWatcher

Awareness Technologies markets a “full family of monitoring software” for computers and mobile devices under the WebWatcher brand. The company advertises WebWatcher as “undetectable” software for use in parental and employee monitoring. Data is sent to “a secure web-based account” that can be accessed from any other computer by using an account name and password. Since communications are intercepted and transmitted while the communication is in progress, a computer user who deletes or fails to save a communication will not prevent WebWatcher from storing it on a remote server.

The software has legitimate uses. Parents typically have the right to monitor their own children, provided they do not violate the privacy rights of others by doing so. In addition, courts generally permit employers to monitor an employee’s use of the employer’s equipment, including computers, company email, and company-owned mobile devices.

The legality of spying becomes much trickier when one adult secretly monitors the communications of another adult. A spouse, fearing the other spouse’s infidelity, might want to use hidden software to read the spouse’s email and instant messages. In some cases, those actions might be illegal.

In particular, the federal Wiretap Act prohibits intentionally intercepting any wire, oral, or electronic communication. The law makes no exception for disgruntled spouses. Yet Awareness Technologies allegedly encourages spouses to engage in just that sort of spying, sells them software that facilitates their activity, and arguably participates in the spying by intercepting and storing private communications at a customer’s request.

Javier Luis’ Lawsuit

Catherine Zang met Javier Luis in an online chatroom. They began an online relationship. They lived in different states (Catherine was in Ohio, Javier lived in Florida) and never met in person.

Catherine’s husband, Joseph Zang, began to suspect that his wife was electronically unfaithful. To confirm his suspicions, Joseph installed WebWatcher on Catherine’s computer.

According to Javier, the WebWatcher software intercepted emails and instant messages between Catherine and Javier. It then stored copies of those communications on a server in California. By visiting his WebWatcher account, Joseph was able to read the communications. He then used their content to “leverage” a divorce with Catherine on favorable terms.

When Javier became aware that Joseph had read his electronic communications, he sued Joseph for violating the Wiretap Act. That law allows the victims of an illegally intercepted electronic communication to make a claim for damages. He also sued Awareness Technologies for its role in the interception of his emails and instant messages. Joseph settled but Awareness asked the court to dismiss the lawsuit on the ground that it did nothing unlawful.

In its motion to dismiss the lawsuit, Awareness contended that it does not “intercept” communications and that it did not “engage in” the violations of wiretap law allegedly committed by Joseph. Javier would need to prove both of those facts to prove a violation of the Wiretap Act.

The district court agreed with Awareness. It reasoned that Joseph installed WebWatcher on Catherine’s computer and that Joseph, not Awareness, therefore controlled any interception of the communications that might have occurred. The court also concluded that Awareness could not be held liable for manufacturing a product that other people use to violate the Wiretap Act.

The district court dismissed the case against Awareness. Javier appealed that dismissal.

Does WebWatcher Intercept Communications?

The appeal was decided by the U.S. Court of Appeals for the Third Circuit on a 2-1 vote. The primary issue was whether Awareness violated the federal Wiretap Act.

The Wiretap Act defines “intercept” as acquiring the content of an oral, wire, or electronic communication through the use of an electronic or mechanical device. Courts have interpreted that definition to mean that the interception must occur contemporaneously. In other words, the interception must occur while the communication is taking place. Accessing an email that has been electronically stored after it has already been transmitted is not an interception of the email. Only messages that are “captured in flight” have been intercepted.

Javier specifically alleged that his emails and instant messages were captured by the WebWatcher software while they were being transmitted. He also alleged that the communications were instantly copied and sent to a server owned by Awareness. That allegation satisfied the requirement that the interception must be contemporaneous, because the interception allegedly occurred before the communication ended, not after it was electronically stored.

Javier supported those allegations by referring to Awareness’ marketing materials, which claim that customers can review communications “in near real-time, even while the person is still using the computer,” and that any delays in real-time observation result from the speed of the internet connection. If the program does not wait for the communications to be stored, it may be intercepting the communications in violation of the Wiretap Act.

Awareness maintains that it does not intercept communications. It argues that its software records them and transmits the recordings to a website where they can be accessed by the person who installed the software. That argument purports to make a subtle distinction between the contemporaneous interception of a communication by Awareness while it is being transmitted (which would violate the Wiretap Act) and the transmission of a communication that has already been electronically stored (which might not).

The court decided that the distinction was too subtle to justify dismissal of Javier’s case without taking evidence as to exactly what Awareness does. Even if a WebWatcher user cannot see communications as they are being transmitted, the materials before the court suggested that Awareness itself captures those transmissions during transmission and then sends them to a server where they are stored. If that is what happens, an interception may take place that violates the Wiretap Act.

Who Is the Spy?

Awareness argued that it did not “engage in” the interception because it merely provided the software that Joseph used. It likened its position to that of a manufacturer of spy cameras. The camera maker is not liable when a purchaser uses the camera for illegal espionage.

Unlike the camera maker, however, Awareness allegedly knows that customers will violate the Wiretap Act and helps them do so. The court of appeals decided that Awareness played an “active role” in any interception that might have occurred by making, marketing, and selling a device that is meant to be used to intercept communications and by sending the intercepted communications to a server where they are stored for customers to view.

Since the exact process by which WebWatcher software works could not be determined on the record before the court, the lawsuit was reinstated. Javier will have an opportunity to learn exactly how the software functions and, if the evidence supports his claim of a Wiretap Act violation, he will have the opportunity to prove his case in court.

Lessons Learned

The court’s decision does not resolve Javier’s case, but the precedent extends beyond Javier’s individual lawsuit. It may open the door for additional lawsuits by victims of internet spying if they can prove that a software company intercepted their communications as those communications were taking place.

A key takeaway from this case is anyone who installs WebWatcher, or any similar program, on another person’s computer may be taking a risk. Whether the customer or the software company might be liable under federal law is still unclear. State laws may provide even greater protection against intrusions on privacy. Any person who wants to spy on a spouse or anyone else using clandestine software should be aware of the possibility that a court might decide their conduct violated state or federal law.

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