electronic communications privacy act

January 24, 2024 Privacy

Website cookie banner was not enough for cruise line to sink federal wiretap lawsuit

cookie banner

Plaintiffs sued Carnival Cruise Line because they were upset about how much information carnival.com collected when they visited the site. “On carnival.com, no action goes unnoticed. Every click is counted, every keystroke is collected, and every cursor movement is catalogued.”

The claims centered around Carnival’s use of Clarity – a Microsoft session replay software that was deployed onto the user’s browser to collect a wide variety of information about the user’s system and browsing behavior. That collection was not limited to information from carnival.com. Clarity allegedly assigned each user a specific id that it used to associate and aggregate browsing behavior across all Clarity-enabled websites.

Plaintiffs asserted several claims, including one under the federal Electronic Communications Privacy Act (18 U.S.C. 2510 et seq.) (“ECPA”). They complained that Carnival intercepted Plaintiffs’ personal information, including their passport number, driver’s license number, date of birth, home address, phone number, email address and payment information, and used that information to trace users’ browsing history on other sites.

Carnival moved to dismiss for failure to state a claim under the ECPA. The court denied the motion.

No “party to the communication” exception

Carnival argued that the “party to the communication” exception of the ECPA absolved it of liability. 18 U.S.C. 2511(2)(d) provides that “[i]t shall not be unlawful … for a person … to intercept a[n] electronic communication where such person is a party to the communication.” But plaintiffs asserted that Microsoft, as the provider of the session replay code software, was a third party to the communication of the browsing information. Courts sometimes find third parties to be merely “extensions” of a website when such third parties’ services “merely function as a tape recorder.” But in this case, citing to Javier v. Assurance IQ, LLC, 649 F. Supp. 3d 891 (N.D. Cal. 2023), the court declined to find that Clarity had such limited functionality. The main problem for Carnival was that Clarity did more than just serve as a “tape recorder” – it used data to generate analytics such as heatmaps of user engagement and profiles of browsing history on other sites.

No consent for third party interception

Carnival also argued that the ECPA claim should be dismissed because plaintiffs had consented to the interception of their information. The court rejected this argument.

Carnival’s first argued that by merely sending a communication over the internet, plaintiffs expressed their consent. It cited to a 2001 Pennsylvania decision called Commonwealth v. Proetto, a criminal case in which that court found that a defendant accused of improperly soliciting a 15-year-old girl online could not claim that the girl’s decision to print out the defendant’s chat communication violated defendant’s right of privacy. In other words, the Pretto case stands for the notion that when one sends something over the internet, he or she loses control, from a privacy standpoint, over what the recipient will do with that information. The court distinguished the Proetto case, however, noting that it did not cover third-party interception, focusing instead on direct communication between two parties, and emphasizing that consent is given specifically to the receiver, not any incidental third party. This distinction was crucial in the present case, as Carnival needed to demonstrate that plaintiffs consented not just to Carnival, but also to third-party session replay providers – such as Microsoft in providing Clarity – involved in data collection.

So Carnival cited to Farst v. AutoZone, Inc., 2023 WL 7179807 (M.D. Pa. 2023) wherein the court dismissed similar claims in the context of online shopping, deeming it a public activity with no expectation of privacy in browsing habits. The court distinguished the Farst case, however, by noting that it did not focus not on the collection of sensitive information like this case did. In the current case, plaintiffs had made concrete allegations regarding the interception of sensitive information (e.g., driver’s license number, date of birth, home address).

Carnival’s second argument for plaintiffs’ consent to its recording policy hinged on a “Cookie Policy” banner on its website, suggesting that continued use of the site provided consent to the policy. Plaintiffs countered this by asserting that the website did not adequately notify users of this recording, and interaction with the site was possible without reviewing or agreeing to any privacy policy. The court observed that in assessing the validity of such “browsewrap” agreements, it should consider whether a website provides sufficient notice to a reasonably prudent user about the terms of the contract. In this case, the Cookie Policy banner was less noticeable due to its smaller text, inconspicuous color scheme, and placement away from key user interaction points, like large “SHOP NOW” or “SEARCH CRUISES” buttons. There was also no evidence that the banner appeared immediately or remained visible throughout a user’s visit. Consequently, the court found that – based on the facts alleged – a reasonably prudent user would not be adequately informed of the terms, siding with plaintiffs’ claim that they did not consent to the interception of their communications.

Rejection of Carnival’s other ECPA arguments

In denying the motion to dismiss the ECPA claims, the court rejected Carnival’s remaining arguments as well.

The court found that based on the facts alleged in the complaint, it was plausible to believe that the transmission of the information was contemporaneous, thereby qualifying as an “interception” under the statute.

It found that the information transmitted was not merely “record information” but that information such as an intent to travel, dates and locations were actual “contents” of the alleged communications.

And it rejected Carnival’s argument that the offending session replay code comprising Clarity was not a “device” prohibited by the statute. Carnival contended that it did not meet the definition of a “device” in the context of wiretapping laws, arguing that a “device” should be a physical object. The court held that that the combination of software and hardware involved in this case fell under the ambit of “device” as contemplated by the statute.

Price v. Carnival Corporation, 2024 WL 221437 (S.D. Cal., January 19, 2024)

See also:

October 24, 2012 Computer Crime, Privacy

Class action against Path faces uphill climb

Hernandez v. Path, Inc., 2012 WL 5194120 (N.D.Cal. October 19, 2012)

uphill path

Earlier this year plaintiff filed a class action lawsuit against photo app provider Path, alleging ten claims relating to Path’s alleged surreptitious collecting of mobile device address books and installation of tracking software. Path moved to dismiss the lawsuit for lack of standing and for failure to state a claim. The court held that plaintiff had standing to pursue the case, but dismissed some of the claims.

Standing

The court found that alleged depletion of “two to three seconds of battery capacity” was de minimus and thus not sufficient to support the injury-in-fact plaintiff was required to show. Citing to the fairly recent case of Krottner v. Starbucks, the court found that the hypothetical threat of future harm due to a security risk to plaintiff’s personal information was insufficient to confer standing. The only basis on which the court found there to be a sufficient claim of injury to support standing was the (hard to believe) claim by plaintiff that he would have to spend $12,500 to pay a professional to remove the Path app and related data from his phone.

The Dismissed Claims

The court dismissed for failure to state a claim (with leave to amend) plaintiff’s claims under the Electronic Communications Privacy Act (ECPA), Stored Communications Act (SCA), California wiretapping statute, state common law privacy, conversion and trespass.

ECPA and California Wiretapping Statute Claim. The court dismissed the ECPA and California Wiretapping Statute claims, finding that the complaint did not allege that Path intercepted any communication contemporaneous with its transmission. At best (from plaintiff’s perspective), it appears that Path gathered information on social networking sites after it was transmitted. And the uploading of the address books does not appear to have qualified as a communication under these statutes.

SCA Claim. The SCA claim failed “on multiple fronts.” Plaintiff was not a provider of electronic communication services and his iPhone was not a facility through which such service was provided. So Path’s alleged access did not come within the prohibition of the SCA. Moreover, the address books were not communications to which the SCA applied, because they were not in “electronic storage” as defined by the SCA, namely, being in temporary, intermediate storage incidental to their electronic transmission. (We see a similar issue in the recent Jennings case from South Carolina.)

State Common Law Privacy. This claim would have required plaintiff to show (1) public disclosure (2) of private facts (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern. The court found there was no public disclosure, only Path’s storage of data on its servers.

Conversion. Under California law, to be successful on a claim of conversion, plaintiff would have had to plead and prove “ownership or right to possession of property, wrongful disposition of the property right and damages.” The court dismissed this claim because plaintiff pled only that Path copied the data, not dispossessing him of it. (As an aside, it’s this very point that underscores my common admonition to copyright maximalists that infringement is not “theft,” because theft involves dispossession. End of digression.)

Trespass. The California common law action of trespass in the computer context requires a plaintiff to show that (1) defendant intentionally and without authorization interfered with plaintiff’s possessory interest in a computer system; and (2) defendant’s unauthorized use proximately resulted in damage to plaintiff. The tort “does not encompass … an electronic communication that neither damages the recipient computer system nor impairs its functioning.” Intel v. Hamidi, 30 Cal.4th 1342 (Cal. 2003). In this case, plaintiff did not allege that the functioning of his mobile device was significantly impaired to the degree that would enable him to plead the elements of a trespass. The court found that any depletion of his mobile device’s finite resources was a de minimis injury. (See the standing analysis above.)

The Remaining Claims

The claims for violations of the California Computer Crime Law, Californa’s Unfair Competition Law (Section 17200), negligence and unjust enrichment remain in the case.

California Computer Crime Law. Based on the limited briefing, the court could not conclude as a matter of law whether Path’s alleged conduct fell outside this statute. The question remains whether providing the app which plaintiff voluntarily downloaded and installed on his iPhone provided undisclosed software code that surreptitiously transferred plaintiff’s data.

Californa’s Unfair Competition Law. This statute prohibits “any unlawful, unfair or fraudulent business act or practice.” The court found that the conduct alleged in the complaint, if true, constituted an unlawful or unfair act or practice within the meaning of the statute. It found that plaintiff had failed to allege any fraudulent practice, but since plaintiff met the first two prongs (unlawfulness and unfairness), the claim survived.

Negligence. Plaintiff alleged that Path owed a duty to plaintiff to protect his personal information and data property and take reasonable steps to protect him from the wrongful taking of such information and the wrongful invasion of privacy. Path allegedly breached this duty by, among other things, accessing and uploading data from plaintiff’s phone, storing that data in an unsecure manner, and transmitting the data to third parties. Path relied on In re iPhone Application Litigation to argue it had no duty to plaintiff. In that decision, Judge Koh held that plaintiffs had not yet adequately pled or identified a legal duty on the part of Apple to protect users’ personal information from third-party app developers. This case was different because Path was a third party developer. Despite the existence of a duty, plaintiff’s claims of damages (here’s the $12,500 repair bill issue again) will likely face substantial challenges as the case progresses.

Unjust Enrichment. Path argued that unjust enrichment was not a cause of action under California law. The court cited to cases suggesting that California law does indeed recognize such a claim and kept in in this case.

Photo credit Flickr user stormwarning under this Creative Commons license.

August 29, 2011 Privacy

Using remote tracking software to find stolen laptop may have violated federal wiretap statute

Clements-Jeffrey v. City of Springfield, Ohio, 2011 WL 3678397 (S.D. Ohio August 22, 2011) [PDF copy of opinion]

Services that help track down stolen laptops and other lost mobile hardware are indispensable. Consider, for example, the year-long saga of Jeff Blakeman who used MobileMe to help recover his MacBook Pro that a TSA agent stole from checked luggage. Or how Joshua Kaufman used the remote recovery application Hidden to snap pics of the creepy dude who made off with his MacBook.

It is hard to not rejoice when one reads stories about laptop thieves being brought to justice. And we generally feel no pangs of conscience over whether the apprehended criminal had any privacy rights that were violated when he was being monitored with the software.

But what if the person being tracked did not steal the device, and did not know that it was stolen? Do we then care about whether the remote tracking process violated that person’s privacy? If so, how should that privacy right stack up against the theft victim’s right to get his or her property back?

A recent case from Ohio shows how the privacy right of the innocent user can constrain the rightful owner from using all means of what we might call “remote self help.” The court applied the Electronic Communications Privacy Act (“ECPA”) in a way that should cause users and purveyors of theft recovery services to reevaluate their methodologies.

Hot communications using hot property

The facts of the case were salacious and embarassing. Plaintiff bought a non-functioning laptop for $60 from one of her students (she was a substitute teacher at an “alternative” high school). After she got the computer working, she used it to have sexually explicit communications with her out-of-state boyfriend — they even got naked in front of their webcams with one another.

As it turns out, however, the student who sold plaintiff the laptop had stolen it. The teacher claimed she did not know it was purloined. The original, rightful owner of the laptop had installed Absolute Software’s LoJack for Laptops on the device. After it was stolen, and after it had made its way into plaintiff’s hands, Absolute began its work of locating the machine and gathering information about its whereabouts and its user.

In this process, one of Absolute’s employees obtained real-time access to what was happening on the stolen computer. He was able to collect keystrokes of the sexually explicit communications, and gather three screen shots of plaintiff and her boyfriend, both naked, fooling around on the webcam.

Absolute turned the information — including the X-rated screen shots — over to the police. Plaintiff was arrested and handcuffed. The criminal court dismissed the case against her.

But plaintiff (and her boyfriend) sued. They brought several claims against the police for violation of their constitutional rights, and claims against Absolute for, among other things, violation of the ECPA. Absolute moved for summary judgment on the ECPA claim but the court denied the motion. The court found that Absolute could not show, as a matter of law, that it should not be liable for the interception of the explicit communications.

Legitimate privacy expectation, even on a stolen computer

Subject to certain exceptions, the ECPA prohibits one from surreptitiously intercepting or disclosing the contents of any wire, oral or electronic communications of another. The defendants first argued that plaintiff could not put forward a valid ECPA claim because she did not have a legitimate expectation of privacy in these communications.

The court rejected this argument, finding that plaintiff’s belief as to her privacy was reasonable both subjectively and objectively. She felt safe enough to engage in the explicit communications (subjective belief), and she demonstrated that she had no reason to suspect the laptop was stolen (objective belief). Had she known or had reason to know it was stolen, her claim of privacy would have been subordinated to the possessory interest of the owner. (As an aside, there was some interesting evidentiary wrangling that went on a few weeks ago about defendants’ expert witnesses opining on internet privacy. Read more about that at Bow Tie Law.)

Public policy did not come to the rescue

Absolute next argued that certain exceptions to liability for violation of the ECPA should protect it. The court rejected each of these arguments. It found that the exception for those acting “under color of law” to track down “computer trespassers” did not apply, because Absolute was a private entity, not one acting under color of law. The court also rejected Absolute’s argument that it could divulge the intercepted contents as a provider of an electronic communications service. The court found that Absolute did not provide an “electronic communications service to the public” as defined by the ECPA.

So Absolute was left with one final argument, namely, that public policy should shield it from liability for the unauthorized interception and disclosure of the keystrokes and screen shots. Absolute argued that the legal owner of the stolen laptop should be able to take steps to locate and recover that property, and that the rights of the property owner must trump those of a thief.

The court declined to implement such a per se rule, noting that:

It is one thing to cause a stolen computer to report its IP address or its geographical location in an effort to track it down. It is something entirely different to violate federal wiretapping laws by intercepting the electronic communications of the person using the stolen laptop.

In so many words, the court was saying that Absolute went too far in collecting the contents of the communications being made on the stolen computer. Had the information collection stopped at IP addresses and other non-content information, the remote tracking efforts may not have run afoul of the ECPA.

August 11, 2011 Computer Crime, Privacy

Court sides with college accused of snooping on student’s email

Reichert v. Elizabethtown College, 2011 WL 3438318 (E.D.Pa. August 5, 2011)

Plaintiff’s threatening behavior toward certain faculty members of his college led the administration to monitor plaintiff’s school-issued email account. Plaintiff’s lawsuit against the school included claims for violation of the Electronic Communications Privacy Act (ECPA), the Stored Communications Act (SCA), and common law invasion of privacy.

The college moved to dismiss these claims and the court granted the motion.

The court found that the ECPA claim failed because plaintiff did not allege the interception of the email messages was contemporaneous with the messages’ transmission. As for the SCA claim, the court noted that the statute protects electronic communications providers from liability for searches of their own systems which are used to provide the service. The school provided the service, so it could not be liable for monitoring its own system. And as for invasion of privacy, the court found that plaintiff had failed to allege the mental distress required to sustain such a claim.

April 7, 2011 Computer Crime, Privacy

Court says law firm did not eavesdrop on employee phone calls

Bowden v. Kirkland & Ellis, 2011 WL 1211555 (7th Cir. April 1, 2011)

Two former employees of a law firm sued the firm for violation of the Electronic Communications Privacy Act, 18 USC 2510 et seq. and for violation of the Illinois Eavesdropping Act, 720 ILCS 5/14-2. The district court granted summary judgment in favor of the law firm. The former employees sought review with the Seventh Circuit. On appeal, the court affirmed the grant of summary judgment.

The court held that the former employees’ evidence of eavesdropping raised no more than a “theoretical possibility” of a violation. Even one of the strongest experts in the case triple hedged his testimony, saying the records “could indicate the potential that interception may have occurred.” So the grant of summary judgment was proper.

The plaintiffs had also raised an electronic discovery issue, namely a claim that the law firm spoliated evidence by destroying a server that contained phone records relevant to the case. The court rejected that argument, finding no credible evidence that the destruction was undertaken in bad faith.

September 30, 2010 Computer Crime, Privacy

Divorce attorney did not conspire to violate the Electronic Communications Privacy Act

Court declines to recognize secondary liability for civil ECPA violation, holding that defendant’s divorce lawyer could not be a conspirator in a civil action alleging email interception.

Garback v. Lossing, 2010 WL 3733971 (E.D.Mich. September 20, 2010)

Plaintiff sued his ex-wife’s attorney for violation of the Electronic Communications Privacy Act. He claimed that his ex-wife, her attorney and some other defendants (including a computer forensics firm) acted together to violate the ECPA by “hacking” into plaintiff’s email account. The ex-wife allegedly used information gathered in this process to negotiate a more favorable divorce settlement.

The defendant attorney moved to dismiss for failure to state a claim upon which relief may be granted. The court granted the motion.

The court found that in plaintiff’s “inartful” pleading, he had failed to allege that the defendant attorney had actually intercepted or knowingly used information obtained in violation of the ECPA. Plaintiff argued that this failure was not fatal, however, in that he had alleged that the defendant attorney conspired to intercept emails.

Rejecting this argument, the court observed that “normally federal courts refrain from creating secondary liability that is not specified by statute.” Finding no textual support in the ECPA for such secondary liability, the court declined to read ECPA’s scope so expansively. The court found the statute as being clear on who may be liable: those who intercept communications and those who get ahold of those communications knowing they were illegally obtained. So the ECPA claim failed and plaintiff was given leave to replead.

September 27, 2010 Computer Crime, Privacy

Doctor’s wiretapping case under ECPA heads to trial

McCann v. Iroquois Memorial Hospital, No. 08-3420 (7th Cir. September 13, 2010)

Mystery of how doctor’s dictation machine got turned on to record conversation between doctor and hospital employee is a question for the jury and should not have been decided on summary judgment.

Two hospital employees — Dr. Lindberg and the director of physician services, Ms. McCann — had a conversation behind the doctor’s closed office door that the two of them thought was private. In their conversation, the two of them criticized hospital administration. But they did not know that the doctor’s dictation machine was recording what they said.

: Image via Wikipedia

How that machine got turned on is a mystery. Dr. Lindberg had been dictating radiology reports a few minutes before Ms. McCann arrived, so he may have accidentally left the machine running. But the recording of the conversation started in mid-sentence, which discredits that theory.

A member of the hospital’s transcription staff, Ms. Freed, is alleged to have come into the room during this conversation to pick up some papers, and Dr. Lindberg and Ms. McCann believe she surreptitiously turned on the machine. That would seem a plausible explanation, given that Ms. Freed supposedly had an axe to grind with Dr. Lindberg.

The recorded conversation made its way to the transcription staff, and after it was typed out, Ms. Freed forwarded it to the hospital’s CEO. Dr. Lindberg and Ms. McCann filed suit against Ms. Freed and others under the Electronic Communications Privacy Act. They claimed that by secretly turning on the dictation machine and forwarding the transcript, Ms. Freed violated the statute.

The district court granted the defendants’ motion for summary judgment. Plaintiffs sought review with the Seventh Circuit. On appeal, the court reversed in part, finding there was a genuine issue of material fact as to whether Ms. Freed was in the room and secretly turned on the dictation machine.

The court of appeals held that whether Ms. Freed was in the office on the date the recording was made was merely the subject of a “swearing contest,” and that summary judgment is not appropriate to resolve such a contest. The lower court had based its grant of summary judgment largely on the contents of the recording. At the end of the conversation, one can hear the office door close as Ms. McCann leaves. But one cannot hear the door shut with Ms. Freed would have left, during the conversation and after she allegedly turned on the dictation machine.

Viewing the facts in the light most favorable to the plaintiffs, the court found that the absence of such a sound did not prove that Ms. Freed was not there: “[N]othing in the record tells us whether the door could have been closed silently; . . . [Ms.] Freed who was conscious that she was intruding (and, perhaps, that she was being taped) may have closed the door softly to be inconspicuous.”

So the court found that whether Ms. Freed was responsible for making the recording — and by extension whether Ms. Freed intentionally intercepted the conversation between Dr. Lindberg and Ms. McCann in violation of the ECPA — was an issue for the jury, and not one for summary judgment.

June 15, 2009 Cybersquatting, Privacy

Scope of Electronic Communications Privacy Act may not be so narrow

Brahmana v. Lembo, No. 09-106, 2009 WL 1424438 (N.D. Cal. May 20, 2009)

Plaintiff former employee Brahmana sued his former employer Cyberdata, claiming that Cyberdata violated the Electronic Communications Privacy Act (at 18 U.S.C. 2511) (&#147ECPA&#148). Brahmana claimed that Cyberdata used a keylogger to intercept the username and password for Brahmana’s personal email account.

Cyberdata moved to dismiss the claim under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The court denied the motion, finding that the determination of whether there was a violation of the ECPA would best be made after discovery.

The ECPA makes it unlawful for any person to intentionally intercept, among other things, any “electronic communication.” An “electronic communication” is defined in the ECPA as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system that affects interstate or foreign commerce.”

An important question in this case was whether the keystrokes allegedly captured by the keylogging device met this definition of electronic communication.

An earlier case from another district (United States v. Ropp, 347 F.Supp.2d 831 (C.D. Cal. 2004)) held that keystrokes gathered by a hardware keylogger attached between a computer’s keyboard and central processing unit were not electronic communications because the system transmitting the information did not affect interstate commerce.

But another case questioned that opinion’s holding, finding that though the keystrokes themselves did not travel in interstate commerce, they did “affect interstate commerce” and therefore fell within the ECPA’s definition.

This court avoided ruling on the legal question of whether intercepting electronic data being transmitted from one piece of local hardware to another might be an electronic communication as defined by the ECPA. One must remember that a Rule 12(b)(6) motion merely tests the sufficiency of the pleadings. The court does not consider evidence at that stage, but merely tests whether the facts alleged by the plaintiff could plausibly support the legal claim.

In this case, the court found that Brahmana’s allegations did not specify whether the particular means of monitoring affected interstate commerce, but were sufficient to render plausible the claim that communications were monitored in some way. “The issue of how any alleged monitoring took place,” the court found, “and whether it allegedly affected interstate commerce is better resolved after some discovery.”

The case instructs us that this court is not willing to read the definition of “electronic communication” as narrowly as the court did in Ropp. No doubt there will be some interesting evidence produced in discovery that shows how the keystrokes were allegedly intercepted. But at least we know at this early stage in the litigation that the court will consider whether the transmission of electronic data within a system — and not crossing state lines — may still affect interstate commerce.

I-Spy photo courtesy Flickr user Leo Reynolds under this Creative Commons license.