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A federal appeals court says the maker of an online spying tool can be sued on accusations of wiretapping.
The federal lawsuit was brought by a man whose e-mail and instant messages to a woman were captured by the husband of the woman.
That husband used that data as a “battering ram” as part of his 2010 divorce proceedings.
It’s the second time in a week that a federal court has ruled in a wiretapping case—in favor of a person whose online communications were intercepted without consent.
The other ruling was against Google.
A judge ruled that a person not using Gmail who sent e-mail to another person using Gmail had not consented to Gmail’s automatic scanning of the e-mail for marketing purposes. Hence, Google could be sued (PDF) for alleged wiretapping violations.
For the moment, the two outcomes are a major victory for privacy.
But the reasoning in the lawsuit against the makers of the WebWatcher spy program could have ramifications far beyond the privacy context—and it places liability on the producers of spyware tools.
In the case decided Tuesday, the 6th US Circuit Court of Appeals ruled (PDF) that Awareness Technologies, which markets WebWatcher, must face a wiretapping lawsuit from a man named Javier Luis because the data its software intercepts is stored on its servers.
“We conclude that Luis has indeed alleged enough facts to reasonably infer that Awareness intercepted his communications,” Judge Ronald Gilman, of the three-judge appeals court, wrote for the 2-1 majority.
In dissent, Judge Alice Batchelder wrote that the technology company was not the one “intentionally doing the intercepting.”
She said the case is a “novel theory of liability” which “does not appear even to have been tried, much less to have been successful, in any previous case.”
Indeed, the appellate panel’s decision reverses a 2014 lower court ruling in favor of Awareness Technologies.
A trial judge ruled that Awareness was not responsible because any spying was done by the company’s customers.
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