Court Rejects Website as a “Device” under Wiretap Act

Published On March 28, 2012 | By Elizabeth Banker | General, Litigation, Privacy
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Last week, the Northern District of California issued a ruling on a motion to dismiss a Wiretap Act claim in Marsh v. Zaazoom Solutions LLC et al adding to existing precedent on two important elements of wiretap claims.  First, the court followed its prior ruling in Crowley v. CyberSource in finding that a website cannot “intercept” communications when the website is the intended recipient of those communications and no third party obtained the communications before they were received by the website.  Perhaps more importantly, the Court also dismissed the Wiretap Act claim because there was no “device” alleged to have been used other than the defendant’s website which the court found did not qualify as a “device” as defined in 18 U.S.C. § 2510(5).  According to the Court, there was “no suggestion … that the … Websites alone were ‘piece[s] of equipment or a mechanism designed’ to serve the purpose of such a hypothetical interception.” Slip. Op. *17.  It is encouraging to see the Ninth Circuit hold firm on what qualifies as a “device” for purposes of the Act as some courts have taken more expansive views (see, e.g., U.S. v. Szymuszkiewicz, 622 F.3d 701 (7th Cir. 2010).

About The Author

Elizabeth Banker has developed a practice that includes advising clients on interactions with foreign and domestic law enforcement, strategic issues related to data storage and transfers, providing advice on surveillance and employee monitoring laws inside and outside the U.S., as well as data protection, security and consumer protection issues.