Sharing More Than You Thought: Facebook Cannot Assert the Party Exception to Avoid Liability Under the Wiretap Act

On April 9, 2020, the United States Court of Appeals for the Ninth Circuit, in Davis v. Facebook, Inc. (In re Facebook), held that unauthorized third parties receiving simultaneous, direct copies of a party’s communication do not fall within the scope of the Party Exception of the Wiretap Act, 18 U.S.C. § 2510–2523. In doing so, the Ninth Circuit, based its holding on the legislative history and purpose of the Wiretap Act and reasoned that the Party Exception requires a narrow construction. Further, it held that to interpret the exception as inclusive of actors like Facebook risks eviscerating the scope of the Wiretap Act entirely. With its decision, the Ninth Circuit joined the First and Seventh Circuits, deepening the circuit split with the Third Circuit over the judicial interpretation of the Wiretap Act. This Comment argues that the Ninth Circuit’s understanding of the Act is correct because it protects the integrity of the Wiretap Act and adheres to the legislative intent to broadly protect individuals’ privacy

Applying the Wiretap Act to Online Communications after \u3ci\u3eUnited States v. Councilman\u3c/i\u3e

This article examines the federal Wiretap Act and its application to online communications in light of the United States Court of Appeals for the First Circuit’s recent decision in United States v. Councilman. The federal Wiretap Act places legal limits on the surveillance of electronic communications, but courts struggle to make sense of its application to online communications. Formerly, courts held that the Wiretap Act did not apply to the retrieval of communications from places of electronic storage. However, in United States v. Councilman, the First Circuit suggests that retrieval of emails from temporary places of electronic storage fall within the Wiretap Act. In order to avoid liability, businesses that monitor customers online should seek customer consent and familiarize themselves with different interpretations of the federal statute as well as various state wiretap statutes

Technology - Konop v. Hawaiian Airlines, Inc.

In Konop v. Hawaiian Airlines Inc., the United States Court of Appeals for the Ninth Circuit held that the unauthorized access of the content of a secure website is a violation of the Wiretap Act and the Stored Communications Act. This is the first case to determine whether unauthorized accessing of a secure private website is a violation of the Wiretap Act. This decision is contrary to an earlier decision by the Fifth Circuit in United. States v. Turk, which held that the Wiretap Act required contemporaneous transmission and acquisition of the communication. The Ninth Circuit concluded that the scope of protection under the Wiretap Act and the Stored Communications Act depends on the degree of intrusion, not on whether the communication is in transit or storage. Subsequently, content on a secure website is an electronic communication within the meaning of the Acts and is therefore protected from unlawful interception. The Ninth Circuit also concluded that defendant\u27s unlawful interception of the content on plaintiff\u27s secure website, followed by its disclosure to an opposing union faction and engagement in coercion and intimidation, raised a triable issue of fact, and remanded Konop\u27s claims under the Railway labor Act

Technology - Konop v. Hawaiian Airlines, Inc.

In Konop v. Hawaiian Airlines Inc., the United States Court of Appeals for the Ninth Circuit held that the unauthorized access of the content of a secure website is a violation of the Wiretap Act and the Stored Communications Act. This is the first case to determine whether unauthorized accessing of a secure private website is a violation of the Wiretap Act. This decision is contrary to an earlier decision by the Fifth Circuit in United. States v. Turk, which held that the Wiretap Act required contemporaneous transmission and acquisition of the communication. The Ninth Circuit concluded that the scope of protection under the Wiretap Act and the Stored Communications Act depends on the degree of intrusion, not on whether the communication is in transit or storage. Subsequently, content on a secure website is an electronic communication within the meaning of the Acts and is therefore protected from unlawful interception. The Ninth Circuit also concluded that defendant\u27s unlawful interception of the content on plaintiff\u27s secure website, followed by its disclosure to an opposing union faction and engagement in coercion and intimidation, raised a triable issue of fact, and remanded Konop\u27s claims under the Railway labor Act

Mission Creep and Wiretap Act \u27Super Warrants\u27: A Cautionary Tale

Congress enacted the Wiretap Act in 1968 in an effort to combat organized crime while safeguarding the privacy of innocent Americans. However, the Act instead served to legitimize wiretapping, and its privacy protections have eroded over time. As a result, there has been a significant increase in wiretapping in the decades since the Act’s passage. As technology evolves, the Wiretap Act does less to protect Americans’ private communications from government interception. Nevertheless, policy makers see the Wiretap Act, with its “super-warrant” procedures, as the gold standard for statutory privacy protection. To the contrary, when considering how to regulate new and powerful surveillance technologies, advocates must not reflexively rely on the language of the Wiretap Act as a model for adequate privacy safeguards. They must consider whether, given the Act’s apparent flaws, it is possible to meaningfully balance the invasiveness of a new technique with the preservation of individual privacy. If so, drafters should focus on crafting statutory language that better implements the intended safeguards of the Act than the Act itself has. This Article describes the deterioration of the Wiretap Act’s protections and should serve as a cautionary tale to advocates as they propose new legislation in the face of modern surveillance tools

Coddling Spies: Why the Law Doesn’t Adequately Address Computer Spyware

Consumers and businesses have attempted to use the common law of torts as well as federal statutes like the Computer Fraud and Abuse Act, the Stored Wire and Electronic Communications and Transactional Records Act, and the Wiretap Act to address the expanding problem of spyware. Spyware, which consists of software applications inserted into another\u27s computer to report a user\u27s activity to an outsider, is as innocuous as tracking purchases or as sinister as stealing trade secrets or an individual\u27s identity. Existing law does not address spyware adequately because authorization language, buried in click-through boilerplate, renders much of current law useless. Congress must act to make spyware companies disclose their intentions with conspicuous and clearly-stated warnings

Behind Enemy Phone Lines: Insider Trading, Parallel Enforcement, and Sharing the Fruits of Wiretaps

Two key trends were present in the successful prosecution of Raj Rajaratnam and his coconspirators in one of the largest insider-trading conspiracies in history: the use of wiretaps to investigate and prosecute insider trading and a joint effort between the Department of Justice (DOJ) and the Securities & Exchange Commission (SEC) to conduct the investigation. Despite the close working relationship between the DOJ and the SEC, the DOJ never disclosed the fruits of the wiretaps to the SEC, presumably due to its belief that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (as amended, the “Wiretap Act”)—the comprehensive framework that authorizes the government to conduct wiretaps in certain circumstances—prohibited it from doing so. Though the Second Circuit in SEC v. Rajaratnam ultimately held that the SEC could obtain wiretap materials from the criminal defendants as part of civil discovery, the question of whether direct disclosure of the wiretap materials from the DOJ to the SEC is prohibited has been raised but not yet addressed. This Note analyzes previous cases addressing the construction of the Wiretap Act’s disclosure provisions and concludes that direct disclosure from the DOJ to the SEC is not prohibited by the Act. It further proposes a process by which civil enforcement agencies, such as the SEC, can request disclosure of wiretap materials through the DOJ in such a way that balances the benefits of disclosure against the privacy interests of the parties whose conversations were intercepted

The Communications Assistance for Law Enforcement Act and Protection of Cordless Telephone Communications: The Use of Technology as a Guide to Privacy

While it is now illegal to intentionally intercept cordless telephone conversations, cordless telephone users have not always been protected. Prior to October 1994 the Federal Wiretap Act did not protect cordless telephone users from private persons or law enforcement agencies who intentionally intercepted their conversations. In fact, the Electronic Communications Privacy Act of 1986 (ECPA) amended Title III of the of the Omnibus Crime Control and Safe Streets Act of 1968 to expressly exclude cordless telephone transmissions from the definition of wire and electronic communications. With the advent of new cordless technology and the ubiquitousness of the cordless telephone, Congress amended the ECPA, by removing the cordless telephone exclusion. Nevertheless, the possibility remains that courts will not protect every cordless telephone communication, because the statute remains ambiguous. Part I of this note reviews the history of the Federal Wiretap Act. Part II analyzes case law interpreting the Federal Wiretap Act and various state wiretap acts. Part III attempts to determine what a cordless communication is - wire, oral or electronic, and whether the new amendment will protect all cordless telephone users. Lastly, Part V determines whether there is a better way of legislating in an area that is forever changing and developing