The law of unintended consequences – a distant cousin of Murphy’s Law – states that the actions of human beings will always have effects that are unanticipated and unintended. The law could prove a perfect fit for recent efforts by class action counsel to rely upon the Federal Wiretap Act in lawsuits arising from adware installed on personal home computers.
Take, for example, the recently filed case of Bennett v. Lenovo (United States), Inc. In that case, the plaintiff seeks to represent a class of purchasers of Lenovo laptop computers complaining that “Superfish” software that was preloaded on the laptops directed them to preferred advertisements based on their internet browsing behavior. The most interesting claim included in the complaint is the assertion that Lenovo and Superfish violated the Federal Wiretap Act.
Wiretap? What wiretap?
The Federal Wiretap Act was originally passed as Title III of the Omnibus Crime Control and Safe Streets Act of 1968. These provisions were included, at least in part, as a result of concerns about investigative techniques used by the FBI and other law enforcement agencies that threatened the privacy rights of individuals. In passing the Wiretap Act, Congress was clearly focused on the need to protect communications between individuals by telephone, telegraph and the like. The Electronic Communications Privacy Act of 1986 (ECPA) broadened the application of the statute by expanding the kinds of communications to which the statute applied. But the focus was still on communications between individuals.
As is often the case, technology is testing the boundaries of this nearly 50-year-old law. The Bennett case is not the first case in which a plaintiff has argued that software on his or her computer that reads the user’s behavior violates the Wire Act. In some cases, the software in question has been so-called “keylogging” software that captures every one of a user’s keystrokes. Cases considering such claims (or similar claims under state statutes modeled after the federal Act) have been split – some based on the specifics of when and how the software actually captured the information, and others based possibly on differences in the law in different parts of the country.
One of the more interesting cases, Klumb v. Gloan, 2-09-CV 115 (ED Tenn 2012), involved a husband who sued his estranged wife when he discovered that she had placed spyware on his computer. At trial, the husband demonstrated that during his marriage, his wife installed eBlaster, a program capable of not only recording key strokes, but also intercepting emails and monitoring websites visited. The husband alleged that once intercepted, the wife altered the emails and other legal documents to make it appear as if the husband was having an affair. The motive? Money, of course. Adultery was a basis to void the pre-nuptial agreement that the parties had executed prior to their ill-fated marriage. The wife – who was a law school graduate – argued that the installation was consensual. Although consent is a recognized defense to a claim of violating the Federal Wiretap Act, for a variety of reasons, the court discredited the wife’s testimony regarding the purported consent and awarded damages and attorney’s fees to the husband plaintiff.
The Bennett plaintiffs may or may not succeed in showing the facts and arguing the law sufficient to prevail in their claim, and we know too little about the facts in that case to express a prediction of the result in that case. But we can state with confidence that the continued expansion of how the Wiretap Act is applied will, at some point, require that Congress step in and update the statute to make clear how it applies in the new internet-based world in which we now live.