Software Company Must Face Wiretap Lawsuit

     (CN) — The company behind WebWatcher software that allows a person to spy on a user’s emails and instant messages could be liable under Ohio’s wiretap law, the Sixth Circuit ruled.
     Javier Luis, a resident of Florida, developed an online relationship with Catherine Zang, who lives in Ohio, in 2009 while participating in an online chatroom about metaphysics.
     The two never met in person, but Zang’s husband Joseph became suspicious about their daily emailing and installed a software program on her computer called “WebWatcher.”
     The software, made by Awareness Technologies, creates copies of all emails and instant messages sent from the computer and forwards them to the company’s servers for later review.
     Zang’s husband used these emails to win favorable terms for a divorce from her a year later.
     Luis sued Awareness for violating Ohio’s Wiretap Act, alleging that it “intentionally targets their product at spouses in their marketing campaigns – enticing them with the lure of finding out everything that goes on in the targeted computer’s private accounts.” (Emphasis in original.)
     He claims the marketing strategy goes “far beyond” any legitimate purpose, such as monitoring a child’s use of the Internet.
     A federal judge ruled that Awareness could not be held liable for making a product that others — like Zang’s husband — used to violate the Wiretap Act, and dismissed the complaint.
     But the Sixth Circuit revived Luis’s lawsuit Tuesday.
     While finding that mere possession of a wiretapping device does not trigger liability under the Wiretap Act, Awareness “remained actively involved in the operation of WebWatcher by maintaining the servers on which the intercepted communications were later stored for WebWatcher’s users,” Judge Ronald Lee Gilman said, writing for the panel’s 2-1 majority.
     Gilman continued, “So even though Awareness itself did not initiate the specific action that ‘intercepted, disclosed, or intentionally used’ Luis’s communications in violation of the Wiretap Act, it is alleged to have actively manufactured, marketed, sold, and operated the device that was used to do so. This is enough to establish that Awareness was ‘engaged in’ a violation of the Wiretap Act.”
     In addition, Luis adequately pleaded an invasion of privacy claim against Awareness, the majority found, with his allegations that Awareness disclosed “private and potentially embarrassing facts” to Zang’s husband, which caused Luis “surprise and dismay.”
     Judge Gilbert Merritt joined Gilman in the majority.
     Judge Alice Batchelder dissented. She said she would hold that Awareness itself did not intercept Luis’s communications.
     “The majority [does not] cogently explain why manufacturing, marketing, and selling should be treated differently from possession,” Batchelder said.

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