Monitoring software dev ordered to face wiretapping suit

WebWatcher goes from chat logs to court logs

The developer of a monitoring app has been ordered to face a civil wiretapping suit in the US.

A ruling [PDF] from the US Sixth District Court of Appeals has overturned the previous dismissal of a suit against Awareness Technologies for violating portions of the US Wiretap Act on illegally intercepting and advertising wiretap software.

Javier Luis of Florida had sued Awareness for illegally logging online conversations he had with Catherine Zang of Ohio. Awareness' WebWatcher tool had been used by Catherine's then-husband Joseph Zang to gather evidence for a divorce filing.

Luis claims that the WebWatcher monitoring software, which logs and stores activity including chat logs, emails, web history, and keystrokes, performed an unauthorized and illegal interception of his communications with Zang. Additionally, he charges that Awareness' marketing of WebWatcher's ability to capture that activity was a further violation of the Wiretap Act.

Separate claims by Luis against Joseph Zang and other unnamed parties were settled, but the complaint against Awareness proceeded to a district court, where it was dismissed after a judge ruled there was no cause of action.

In a decision to overturn the earlier ruling, the Court of Appeals panel shot down Awareness' argument that WebWatcher does not "intercept" communications, but rather logs them as stored data, which is not subject to the Wiretap Act.

The panel disagreed, ruling that by logging the chats, messages, and keystrokes as they occurred in real time, WebWatcher did intercept and eavesdrop on the transmissions between Zang and Luis.

Additionally, the judges pointed to WebWatcher's own marketing materials, which state that the tool "records all PC activity including emails, IMs, websites visited, web searches, Facebook/MySpace activity, and anything typed in real time," and that it does so in "near-real time, even while [a] person is still using the computer."

According to the judges, this suggests that Awareness knew of and designed WebWatcher with the intent that it be used for illegal wiretaps, an additional violation of the law.

"Awareness allegedly manufactured, marketed, and sold WebWatcher with knowledge that it would be primarily used to illegally intercept electronic communications. It then remained actively involved in the operation of WebWatcher by maintaining the servers on which the intercepted communications were later stored for WebWatcher's users," the three-judge panel said.

"Awareness thus allegedly took a much more active role in causing the Wiretap Act violation in this case than the defendants in other cases, who did nothing more than possess a wiretapping device."

The panel notes that the decision does not mean Awareness is liable for damages; rather it says the case has enough merit to move forward to a jury trial. The case has been sent back to the Southern Ohio District Court, where hearings will proceed. ®

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