6th Circuit Allows Wiretap Claim for Computer Spy App

The Sixth Circuit has allowed a Florida man ,who had his platonic communications with a married Ohio woman monitored by her husband using Awareness Technologies, Inc.’s (“ATI”) WebWatcher, to proceed with claims against both the husband and ATI under the federal Wiretap Act, the Ohio Wiretap Act, and Ohio common law.

The Wiretap Act prohibits the interception, use or disclosure of any wire, oral or electronic communications wire.  18 U.S.C. § 2511.  The Wiretap Act also prohibits the manufacture, distribution, possession, and advertising of wire, oral, or electronic communication intercepting devices “primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications.”  18 U.S.C. § 2512.

The court looked to ATI’s marketing materials which permitted monitoring in near real-time to conclude that, even though ATI did not initiate the specific action that “intercepted, disclosed, or intentionally used” plaintiff’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 a way that defendants such as those in Treworgy and Amato—who simply possessed wiretapping devices—were not. See DirecTV, Inc. v. Tasche, 316 F. Supp. 2d 783, 790 (E.D. Wis. 2004) (“Though Tasche may not have actually done the intercepting himself, it would be a stretch to find that he was not ‘engaged in’ that act. Those who sell devices that are designed to steal DirecTV’s satellite transmissions to those who are intent on stealing DirecTV’s satellite transmissions are, in my view, ‘engaged in’ intercepting such transmissions.”).