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Spying on your spouse used to involve reading their mail, looking for lipstick on their collar, looking at call logs, etc. Some of these spy techniques, though widely used in unhappy marriages, can be actionable offenses.
But how culpable are makers of technology that facilitate spying? That is the question at the center of the recent Sixth Circuit case, Luis v. Awareness.
A Florida man named Luis struck up an online relationship with an unhappily married Ohio woman, Mrs. Zang. Mr. Zang, suspecting something, installed a software program called WebWatcher on his wife's computer in order to track her activities. The program intercepted email, instant messages, and other electronic communications that were sent from Luis to Mrs. Zang.
Later, those communications were sent to Mr. Zang for his review. He later used those communications as a "battering ram" in divorce proceedings against his wife to obtain a favorable settlement on his terms.
Mr. Zang settled out of the lawsuit, leaving only Awareness Technologies (the maker of WebWatcher) as defending party. Luis brought several counts against Awareness, most of them concerning violations of privacy and wiretapping laws, most notably, the federal Wiretap Act.
Although the lower federal court dismissed the case, the Sixth Circuit's decision to revive the the case is noteworthy. A couple of facts alleged in Luis's complaint saved the action, as it were. First, Luis alleged that WebWatcher "immediately and instantaneously" intercepted and routed communications between him and Mrs. Zang to Awareness's servers in California. And since these words sound as if the communications were intercepted before they came to rest or within the hands of a recipient, there is enough of an allegation to rope the controversy into court.
Second, Awareness was shown to know that there were few "wholly legal" applications of the WebWatcher software. In other words, unlike cameras and recorders (which have many wholly legal applications) the WebWatcher software is essentially tailor made to help facilitate illegal invasion of privacy. Because of this, the Sixth Circuit determined that Awareness could not so easily wiggle out of civil litigation via dismissal and that the federal Wiretap Act was probably implicated.
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