Maker of Web Monitoring Software Can Be Sued (cio.com)

Posted by msmash on Wednesday August 17, 2016 @08:15AM from the consequences dept.

Reader Presto Vivace shares a CIO report: The maker of so-called spyware program WebWatcher can be sued for violating state and federal wiretap laws, a U.S. appeals court has ruled, in a case that may have broader implications for online monitoring software and software as a service. The U.S. Court of Appeals for the Sixth Circuit rejected WebWatcher vendor Awareness Technologies' motion to dismiss a lawsuit against the company. The appeals court overturned a lower court ruling granting the motion to dismiss. The appeals court, in a 2-1 decision rejected Awareness' claims that WebWatcher does not intercept communications in real time, in violation of the U.S. wiretap act, but instead allows users to review targets' communications. While plaintiff Javier Luis' lawsuit doesn't address real-time interception of communications, his allegations "give rise to a reasonable inference" of that happening, Judge Ronald Lee Gilman wrote. Awareness pitches WebWatcher as monitoring software for parents and employers. "All WebWatcher products install easily in 5 minutes or less, are undetectable (thus tamper proof) and all recorded data is sent to a secure web-based account which allows you to monitor kids and employees at your convenience from any computer," the company says.

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Can be sued, but not necessarily successfully. by Anonymous Coward · 2016-08-17 08:36 · Score: 5, Informative

Realize what this is, and what it isn't. It's not setting aside a jury verdict. The lower court through the case out entirely because, as the lower court interpreted the laws, there was no reasonable case to be made that the actions of WebWatcher could be shown to violate the specifics of wiretapping law.
The appeals court ruled that the lower court interpreted the statue too narrowly, and there was at least a dispute over whether WebWatcher's activity could be held to violate certain portions of the statute.
That is NOT THE SAME as the appeals court ruling that WebWatcher DOES violate the wiretapping statue, or that they won't prevail eventually on their interpretation of the statute. It means that it's not a sufficient slam dunk that we can dispense with a trial.