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

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.

Comments

Re:Speaking of Microsoft -- Do not use it.

[Anonymous Coward]

http://finance.yahoo.com/quote/MSFT?ltr=1

57.56+0.12 (+0.21%)
At close: 4:00 PM EDT

57.56 0.00 (0.00%)
After hours: 4:27 PM EDT

Interactive chart
Open 57.54
Prev Close 57.44
Bid 57.53 x 1000
Ask 57.59 x 1500
Day's Range 57.23 - 57.67
52wk Range 39.72 - 58.50
1y Target Est N/A
Market Cap 448.54B
P/E Ratio (ttm) 27.41
Beta 1.26
Volume 17,168,451
Avg Vol (3m) 31,360,040
Dividend & Yield 1.44 (2.49%)
Earnings Date N/A

P/E Ratio (ttm) 27.41 is very high for a company with no growth and potential lawsuit. I would consider a short sale here.

Re:Speaking of Microsoft -- Do not use it.

[Anonymous Coward]

That is surely not a good time to be long on MSFT. I remember the dot-com bubble of 2000 when everybody who held Microsoft shares absolutely lost their life savings. I would not touch a long position on MSFT right now.

Re:Speaking of Microsoft -- Do not use it.

[Anonymous Coward]

Almost everybody but kids have switched to Linux already. I can't imagine there is any profit available to a spyware company that is so hated. The only company I have ever heard of that was hated more was Comcast.

Can be sued, but not necessarily successfully.

[Anonymous Coward]

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.

Re:Can be sued, but not necessarily successfully.

[mark-t]

If you can't succeed at doing something how can you say that you "can" do it in the first place? At most all you can say is that you may *try* to do that thing, but the inability to do it successfully would ordinarily mean that you still can't actually do it.

Re:Speaking of Microsoft -- Do not use it.

[Anonymous Coward]

HOLY SHIT!! YOU ARE RIGHT!
http://www.nasdaq.com/symbol/msft/short-interest

Impact?

[Anonymous Coward]

So what does this do to proxies and packet capture systems, not to mention wireshark?

Re:Impact?

[Archangel Michael]

I would submit that Packet Capture is either Wiretapping and Wireshark (and other tools, like proxies, firewalls etc etc) are all in violation, or they are not, which would excuse this particular example. It would be a simple case.

In this case, I would suggest that the ONLY reason they are being sued isn't because of what it does(Technically), but because "Spying" (histrionics)

Re:Impact?

[DRJlaw]

I would submit that Packet Capture is either Wiretapping and Wireshark (and other tools, like proxies, firewalls etc etc) are all in violation, or they are not, which would excuse this particular example. It would be a simple case.

It makes a difference whether:
1. You're running Wireshark on your own network to capture traffic sent to or by you (not wiretapping)
2. Your service provider or employer is running Wireshark on its network (for network management purposes, not wiretapping)
3. You're running Wireshark on someone else's network (um, yes, wiretapping)
4. You're running Wireshark on your own network to capture traffic sent to someone else, like your non-consenting spouse (guess what, it's wiretapping!)

18 USC 2511. Read it. Then read the definitions in 18 USC 2510. Or find a lawyer to explain all this to you.

It's not an either or situation. Also, proxies, firewalls, etc. are simply are not interesting -- you've agreed to those in your terms of service, your decision to work for an employer and use their communications resources, etc, and they're using in the ordinary course of providing service, and they don't "acquire" content for the operator (ordinarily)..

On the other hand, your spouse probably hasn't contractually submitted to your dreams of communications totalitarianism where you log and review everything they do, so yes, the same tool can be in violation or not.

Fix: Counter Suit

[s.petry]

Read the case: Suspicious person installs software (yeah, we all know if you suspect it's probably true but we are taught to live and love).
Catches husband meeting up with some other woman.
Expected marital troubles ensue.
Angry guy gets mad and files a suit against people because they got caught.

Now, take all that and replace it with a man catching his cheating wife. I wrote it in the opposite gender because some people are simply idiots and this makes it harder for them to be idiots.

Harm was not caused by the company, but harm was caused to the company. I'm fine with the company being sued but a counter for damages due to both litigation and libel are well within reason.

Time to wear the big boy pants and be responsible for your actions. Welcome to equality!

Re:Fix: Counter Suit

[Anonymous Coward]

I actually used WebWatcher and caught my ex-wife cheating on me. The software (web based) sucks but it did the job. It's a shame they're being sued.

Re:Fix: Counter Suit

[BarbaraHudson]

There's no law requiring anyone to refrain from having sex with someone they are not married to. This is true even for married couples. Catching a spouse having an affair behind your back sucks, and if it were against the law, I'd have a couple of scalps nailed to the wall somewhere, but your suspicions don't give you the right to intercept someone else's communications. They also don't give you the right to invade their privacy. Marriage (or any relationship) doesn't give you the right to act like an asshole and spy on someone. Think of how your children would feel if they caught you doing that sort of sh*t, reading their diaries, installing spyware to track them, etc.

I hope that the spyware company is nailed to the wall. Then we can go after other spyware businesses, such as Facebook, who track you all over the web, and not just on their site; Google, who also tracks you wherever you go to "serve up personal ads" (that may contain a virus); Microsoft, who is doing their best to monitor what you are doing with your own computer; your ISP for keeping records of your online activity.

And let's hope the advertisers get nailed as involved 3rd parties, because none of this would be happening if they were limited to plain text and ordinary images with just a link, no javascript, no fancy urls giving the ad server or anyone else enough information to match up the viewer with a specific profile.

Because let's be honest - someone cheats on you, it's not that hard to dump them, but these businesses ... they're worse than bedbugs and cockroaches. The only way to be sure is to burn everything to the ground.

Re:Fix: Counter Suit

[Altrag]

There's a distinct difference between Web Watcher and those other services: You are (often implicitly) agreeing to be tracked by Microsoft, Facebook, your ISP and whoever else you deal with via their EULAs and/or service agreements.

Google is a possible exception since there's a level of indirection there (you're "agreeing" to use the website that hosts the ads and the website makes the further agreement with Google on your behalf.. or something to that effect.)

Web Watcher is a different story. If I set up the software to watch your surfing habits, the only agreement in place is between myself and Web Watcher. You have no say in the matter -- not even an implicit agreement.

Now of course being a good Slashdot reader, I didn't RTFA and there are some scenarios where Web Watcher would be perfectly legitimate (though still somewhat morally questionable.) For example, if its installed on your corporate network so that your boss can track you, it would (or at least should) be part of your employment contract that you know and accept this is the case.

If your boss silently sneaks it onto your computer without your knowledge however, then we're back to the illegitimate use case. ("Letting you know" of course is sometimes questionable in itself. Posting a fine-print one-liner on the back of the company's monthly bulletin that nobody reads probably would constitute informing you in a lot of cases, regardless of the fact that all parties involved are well aware that you likely didn't actually notice or read it -- ignorance is not an excuse after all! Or at least you have to do a lot more talking to convince a judge that you were truly ignorant and that ignorance alone should justify letting you off the hook.)

Re:Fix: Counter Suit

[Anonymous Coward]

You're probably retarded. This is friendly advice: Do some research before looking like an idiot on the internet.

You *should* invade your children's privacy. Until they are an adult, you are their one hedge against the bullshit of the world. Every television program they turn on and every website they open is seeking to exploit them and turn them into the lowest dregs of society. Society wants them to be a violence-seeking slut. They are bombarded by negative messages dressed up to look positive ("Huhr what's wrong with being a slut?"). Their parents should be actively campaigning against such exploitation. I bet you turn around and scream "Where were the parents?!?!?!" every time a kid brings a gun to school, if you're not actively blaming the gun.

If your spouse is cheating on you, it IS your business, and in many cases, it is against the law. Adultery is bad. Really bad. Worse-than-rape bad. It's not always against the law (depending on jurisdiction), but it is one of the worst things you can do to someone, psychologically and socially speaking. Getting married means that you are in each other's business. There is some degree of privacy expected, but there's also a degree of personal respect expected -- violate the latter by fucking around and don't be surprised that the former is violated by the other party attempting to catch you for it. This is like a bank robber bitching that the policeman scared him with a gun, but a civil matter rather than a criminal one.

Re:Fix: Counter Suit

[Megol]

You really have a fucked-up worldview about everything it seems. If not promoting your ideas about transsexualism (which are remarkably uninformed especially from you) it is some other topic where you can't even provide a shred of reasoning.

There are adultery laws. There are no laws against doing normal snooping to see if there is something behind the suspicions (unless in extreme cases). The adult that _don't_ reading their childrens diaries etc. IF there are suspicions of something potentially serious going on isn't sane.

Your sense of proportionality also needs adjustment.

Re:Fix: Counter Suit

[Ol Olsoc]

Think of how your children would feel if they caught you doing that sort of sh*t, reading their diaries, installing spyware to track them, etc.

That's considered responsible and good parenting in 2016.

Re:Fix: Counter Suit

[phorm]

someone cheats on you, it's not that hard to dump them

That is, if you don't mind up giving half of what you've spent your life earning...

Re:Fix: Counter Suit

[BarbaraHudson]

Sure - someone's going to worry about Maryland's $10 fine. That's basically a hall pass to screw around and pay the ticket.

Nobody's been convicted in Massachussetts in more than 30 years, so good luck with enforcing that law.

In South Carolina, it's only if you're living together with the other person IN South Carolina, or habitual sex with that other person. Hop over the border, a succession of one-night stands, etc., are all legal.

Florida requires it be the much higher standard of "in an open state of adultery." Casual discrete affairs are legal. And if they do decide that you were living in an open state of adultery, the maximum fine is $500, and the maximum jail sentence is 60 days. Seriously, nobody has been prosecuted since 2006, and there's enough case law that it won't happen again.

New York it's a crime, but only 13 people have been charged in the last 40 years, and you really have to work at it to get charged. Like the couple who were doing it on a picnic table in a park in broad daylight while kids were around..

It's not very often you have people engaging in sexual activity in a park in broad daylight," said Officer Eric Hill of the Batavia Police Department. And when you do, presumably there is usually a bush or bushes or some other type of ground cover involved. But the 29-year-old man and 41-year-old woman in this case chose a picnic table, upon which they could be seen by others who were enjoying the park in a more traditional way. Families with children were visiting the park at the time, and one of them called police, although there is no indication that anybody checked to see if either of the picnickers had a living spouse.

Nobody wants to look stupid wasting taxpayer money prosecuting people for adultery. The odds of finding a jury where nobody has committed adultery are pretty bad, which is why it's prosecuted as a misdemeanor, if it's prosecuted at all, in states where the accused doesn't have the right to a jury trial. Juries know that they could be in the same position, if they haven't already been.

Those states that still have these laws need to wake up and stop acting like the Christian Taliban, especially since those who scream the loudest about the lack of moral rectitude are the same ones who are caught with their pants down on grindr, etc.

Re:Fix: Counter Suit

[PatientZero]

Adultery is bad. Really bad.

Totally agree. What reasonable person wouldn't?

Worse-than-rape bad.

Uh, wow. Are you seriously claiming that breaking a social contract is worse than physical, sexual violation?

SMH. We are well and truly fucked.

Re:Fix: Counter Suit

[BarbaraHudson]

You're the one intentionally being a butt-head. This was openly marketed as spywere, not a "security tool to secure a computer or network" - which it can't do. Of course, being a butt-head, you didn't read the article. Butt out.

As for the marriage vows, so what? People are allowed to change their minds. And when they do, their partner is free to dump their sorry ass. Atheists certainly don't hold to the idea of marriage as a traditional institution. And why bother listening to Christians, since they are demonstrably hypocrites, not just wrt adultery, but being the people who get 78% of all abortions. Hey, that's a lot of kids out of wedlock or "inconvenient."

Also, stop being sexist - either sex can abandon the other. Happens all the time.

Re:Fix: Counter Suit

[BarbaraHudson]

"Implicit" doesn't amount to shit in court. Rapists have used that excuse because they bought a couple of drinks so sex was "implied."

Also, if the party is reasonalbly aware that you didn't read the notice, it's not binding - same as too-fine small print. So yes,ignorance is an excuse. If the judge has to put on his or her reading glasses to read it, it's too small to hold up in court.

Re:Fix: Counter Suit

[Obfuscant]

If the judge has to put on his or her reading glasses to read it, it's too small to hold up in court.

On a web-page EULA, the font is as small or as large as you want it to be. If you make it too small to read, it is YOUR fault and the implicit agreement still holds. Ignorance of how to configure your web browser to view text is not an excuse.

Re:Fix: Counter Suit

[BarbaraHudson]

Here it's against the law even for a private investigator, or the spouse, to stake out the family home to catch someone cheating. Privacy of the family dwelling beats suspicions every time.

As for monitoring, etc., why not go for prevention instead? To use your gun example, bring up your kids in such a fashion that they're not going to go off half-cocked with a gun when they have a conflict. I don't scream "where are the parents" when a kid does a school shooting - I already know they're almost certainly gun nuts themselves, leading by bad example that firearms are a great equalizer. And lately, there's also a good chance that they're dead, the first victim of their own stupidity. #DarwinAward.

The same applies to internet use, driving a car, sex, or any other activity where common sense behavior can be taught. You should assume that at some point they're going to use the internet, drive a car, have sex, and you should be preparing them to do so in a safe manner. And if you think you can stop your kids from having sex until they're adults by monitoring them, you're an idiot.

Your job as a parent isn't to boost your ego by turning them into mini-me clones, but to prepare them to be able to handle life on their terms, whatever they decide those terms should be. It's called respect, and you can't teach it, but if you show it to them they can catch it from you.

Adultery is bad. Really bad. Worse-than-rape bad

You have obviously never been sexually assaulted. If you had been, you would know that it's far worse than finding out you're being cheated on. So, to quote you, "You're probably retarded. This is friendly advice: Do some research before looking like an idiot on the internet."

People like you almost deserve to be cheated on - your lack of understanding of others is justification enough to kick you straight to the curb because there's something seriously wrong with your values. Adulterers you can kick out, or make their lives miserable by NOT kicking them out. Or you can fix whatever was broken ON BOTH SIDES. Can't do any of that after a sexual assault. What you can do is let the courts make you a victim a second time. Not just reliving it, but telling it in detail all the while the other side is trying to make it look like it wasn't that bad and it was your fault anyway. Even if you didn't need therapy after the assault, you almost certainly will after the trial.

Re:Fix: Counter Suit

[BarbaraHudson]

Most civilized places have done away with adultery laws. We don't want the Christian Taliban stoking the fires when there's a problem in a relationship, screaming "adultery adultery." There are two options, both of which are rational: split (amicably as possible) or fix the problems on both sides of the relationship. Bringing antiquated laws into it is a hindrance, not a help.

The states that still have adultery laws on the books, I've already posted about how they are mostly a joke, not enforced, and not enforceable. A $10 fine for adultery is a hall pass, not a penalty. "Cheat as much as you want, so long as you paid the fines, you've 'done the time.'" It's the same as states that don't count anal penetration by the man's penis of a woman's anus as sex - "I did not have sex with that woman." So gay anal sex isn't sex, male-female sex isn't sex, lesbians engaging in cunnilingus isn't sex, blow jobs aren't sex ... take your stupid laws and shove them.

I would say that the adult who can't sit down with their child and discuss their suspicions without first snooping around gathering evidence to nail them with has already f*cked their kid over. You're as bad as the parents whose kids won't phone them for a lift if they've had too much to drink because they know you won't talk about it rationally, and that following your rules is more important than whether they get home alive or not.

We spend good money advertising that kids should always be able to call their parents for a lift and that the parents should keep it in proper perspective. Seems your neck of the woods hasn't gotten to that point yet.

Same as a lot of other things where ignorance reigns supreme.

Re:Fix: Counter Suit

[BarbaraHudson]

Think of how your children would feel if they caught you doing that sort of sh*t, reading their diaries, installing spyware to track them, etc.

That's considered responsible and good parenting in 2016.

Not in most advanced countries. If you can't just sit down with them and discuss your worries without first snooping around, you've already failed as a parent, and they have every right not to trust you or be honest with you because you've betrayed their trust. Kids learn by example, and the most influential example is their parents. You being a snoop teaches them that it's okay to snoop, there are no boundaries to it, not even in the family, and that trust is for wimps and fools.

What next - turn into a stalker because you think your spouse or your kid is screwing around? Even if you find out it's the case, the only rational response is the one I already gave above - sit down and discuss it with them - which you should have done before becoming another Inspecteur Clouseau type.

Re:Fix: Counter Suit

[BarbaraHudson]

someone cheats on you, it's not that hard to dump them

That is, if you don't mind up giving half of what you've spent your life earning...

I;m an atheist, but I agree with the Bible when it says that it's better to have a dry crust on a rooftop than a mansion and a bad partner.

You have to accept some responsibility, if only for making a bad decision in the first place. Hopefully you'll recognize it the second or third time you go through the process, and make better choices.

Just like you will have learned to get a pre-nup, or just shack up, or move to a jurisdiction that defaults to partnership of aquests only (you only split what was acquired during the marriage, which is fair). Marriage is so passé anyway. It's 2016.

Re:Fix: Counter Suit

[BarbaraHudson]

"This is how it was presented, Mr. Judge." "Seems reasonable that they presented it that way so that you would be disinclined to read it. Not valid!"

Re:Fix: Counter Suit

[Sique]

I don't get it. Where I live, adultery is just nothing. Even in divorce cases, adultery does not count. What counts is, if the broken marriage can be mended. If both sides agree that they don't want to continue with the marriage, and there is objective proof of the marriage being broken beyond repair (like the spouses living separated lives for more than a year), they can be divorced. It is never asked whose guilt it is.

The reasoning behind this is that the problem with a marriage not working is always on both sides. If you can't keep your partner faithful, and if you can't accept your partner being unfaithful, its considered your problem too, not just that of your partner.

Re:Fix: Counter Suit

[Ol Olsoc]

Think of how your children would feel if they caught you doing that sort of sh*t, reading their diaries, installing spyware to track them, etc.

That's considered responsible and good parenting in 2016.

Not in most advanced countries.

I'm not disagreeing with you. I was being extremely facetious. Because parents who for the last 20 years or more, have attmpted to shield their children from any and all adversity in their lives, have damn near destroyed their kids, producing healthy beautiful adults with no emotional maturity. These children, who never got an unstructured moment not supervised by their parents or some other adult, have remained children long after normal offspring would be raising families of their own. I feel so badly for these adult 13 year olds, they have lost over a decade of their lives to be emotionally stunted. Lest any millenials thing this is an attack against them, it isn't. It is however just about the ultimate insult against your mommy and daddy, who screwed you up.

What next - turn into a stalker because you think your spouse or your kid is screwing around? Even if you find out it's the case, the only rational response is the one I already gave above - sit down and discuss it with them - which you should have done before becoming another Inspecteur Clouseau type.

Too late. As you see by the other responses to your post, the abusers think that you are the one with a problem. they are already stalking their children, that is one of the selling points of services like Xfinity's home survelliance service, where they show mommy sitting at work, and sooooo relieved that the children have made it home, and she can see them come into th house. I fully expect this neurosis to continue through some of these emotionly stunted adult children's lives. Certainly mommy and daddy will end up ignoring their work as the soon feel that have to check on the children 100 percent of the time - you know - just in case a thug comes in to do whatever they fear a thug might do. It's the next addiction, similar to people breaking into a cold sweat when their smartphone shows no bars.

Sad really. Now watch this.I'm gonna make the parents shit their pants.....

My son and his buds played street hockey as children, on an actual road, with roller blades!!!!!! When a car would come down the street someone would yell car, and they'd gather the nets and move them off to the side. Ohhh, the huge manatee!

And while my wife or I kept a very discreet eye on them. we didn't interfere at all. The kids learned how to interact with each other. Then as he hit Jr High, we relaxed a bit, mostly after the puberty wackiness. Then by the time he hit high school we really started to relax the reins. We had all the proper interactions regarding drugs and sex - as in avoid that shit, and for god's sake don't go boinking without some precautions. Played Ice hockey to give an outlet for aggression. Never spied on him. Luck? part of it. But he could make adult decisions by the time he was 20.

And it worked a hellava lot better than a lot of his friends who are now in therapy or drugged for depression. Meanwhile I do predict lifelong surveillance of other people's children. Sad, that.

Re:Fix: Counter Suit

[argumentsockpuppet]

God bless you for suggesting moving. (Can't resist the irony!)

I wish more people were willing to recognize that you have control of your own destiny at least to the extent of the laws you choose to live under.

Re:Fix: Counter Suit

[Sique]

Then you went into a marriage without really knowing your partner, or having illiusionary ideas how to make it work anyway. So this marriage was a bad idea from your side from the beginning.

Re:Fix: Counter Suit

[houghi]

The fact that somebody cheats is one thing and yes, you should be responsible for your actions.

The fact that you spy on somebody is something separately and should not be influenced by the cheating. Because, what if the one person found out and NO cheating was going on. Then suddenly it becomes stalking.

Re:Fix: Counter Suit

[WorBlux]

There are still alienation of affection cases in civil law wherein the other spouse can sue you for sleeping with their spouse. And anyways puts you at risk of being on the wrong end of a fault divorce.

Re:Fix: Counter Suit

[orgelspieler]

I've often wondered why this is the case. More states had laws against sodomy than adultery. Yet, to my mind adultery is far more heinous, since there's definitely one party not consenting who will be pretty hurt by the activity. In Texas, you could have a mistress, but you couldn't buttfuck your wife. (at least not legally) For all the talk about "Defense of Marriage" you would think adultery would be one of those things the Congress could agree on. Especially since some people have affairs across state lines (interstate.. ummm.. commerce?). But I guess since most of them are adulterers, they don't want to seem *that* hypocritical.

Re:Fix: Counter Suit

[Obfuscant]

"This is how it was presented, Mr. Judge."

You agreed to a contract without reading it, and without taking any effort to read it. You can control the font sizes, it's your responsibility. Ignorance is no excuse.

"Seems reasonable that they presented it that way so that you would be disinclined to read it. Not valid!"

Every contract is presented in a way that people are disinclined to read them. How they present it is up to you in the long run.

Re:Fix: Counter Suit

[Altrag]

Rapists have used that excuse because they bought a couple of drinks so sex was "implied."

That's not even close to the same thing. In the case of the website, the agreement exists and the implicit part is assuming you've read it (in which case its explicit.) Which is why every single one of those things contains some text similar to "by using this service you agree to our terms" along with "and if you disagree, you're free to uninstall/not use it."

The sex equivalent would be buying the girl a drink and then before you hand it to her stating "if you drink this, you are contractually obligated to sleep with me." At that point, drinking it DOES imply agreement because it was stated as such. I mean in this case you'd probably want witnesses because that sounds like a pretty implausible story, but its still wholly different from you just making the assumption with no knowledge on her part (in fact in that case, she'd be more like the Web Watcher's victim than the user.)

As for the party being reasonably aware.. I would say that that almost certainly would hold up by now. If there's anybody out there who at this point isn't reasonably aware that every website, software package or other digital service on the planet doesn't come with a EULA that you're implicitly agreeing to when you use the product, then they need to have their head checked and catch up to the 21st century. Fucking Panago has a EULA just to order a pizza. You might be able to fight specific claims if they're super unusual or punitive but claiming ignorance of a EULA in general is a bit disingenuous and likely won't get you very far.

And for the most part, EULAs seem to at least not get dismissed outright as being non-binding and get to go through the full dispute proceedings like any other contract.

Re:Fix: Counter Suit

[orgelspieler]

As a survivor of sexual abuse, I can see where the GP is coming from. Look at it this way. You're in a loving relationship with somebody you trust with everything: your money, your body, your truck, your kids, your deepest secrets and fears. (OK, I'm a Texan, so truck might be first on that list.) Then you find out he's been lying and cheating for the last four years. Now it's suddenly as if you've been getting raped for four years and didn't even know it. It's not like you would have consented knowing that he could have picked up god-knows-what VD from his little fuck buddy. Not only that, but the perpetrator has 100% access to your money, your house, and can even take your kids if he has a good lawyer. In some states you can't even insist that he leave the premises.

And the whole "blame the victim" thing is every bit as common with cheating/divorce as it is with rape. How many forums have you read where people just say, "maybe if you would have put out more often" or "maybe if you stayed thin" or "you should have known he was a cheater before you married him." In some states, the spouse getting cheated on has no recompense, either. So implicitly the state is blaming the victim, too.

Sure, it's not the most elegant comparison, but it's not totally beyond the pale.

Re:Fix: Counter Suit

[orgelspieler]

People change. You may know your spouse better than anybody, but the people you will become in 15 or 20 years is unknown to anybody. I have been fortunate. My wife and I have grown and changed in interesting but manageable ways. For better or worse, and all that. It can take work, but that's OK. Not all of my friends and family have been so lucky.

Sometimes one spouse outgrows childish habits and wants an adult partner for life. Sometimes people develop gambling addictions. Sometimes people start listening to short-wave radio and think the black helicopters are out to get them. Sometimes people go nuts and threaten to harm the kids. I really don't think we should consider somebody a failure for knowing when to call it quits. If somebody changes careers just before their industry tanks, we applaud their insight and good timing.

Re:Fix: Counter Suit

[BarbaraHudson]

Civil lawsuits have SFA to do with crimes. No connection whatsoever. They're also very hard to win (because the one suing probably has their fair share of blame) , and impossible to file in no-fault jurisdictions. Only a loser would file for "alienation of affection" - this is not 50 years ago when a wife was regarded as quasi-property.

Re:Fix: Counter Suit

[BarbaraHudson]

Affairs across state lines were covered by the Mann Act. They claimed it was intended to counter-act interstate prostitution, etc., but it was notorious for it's use in prosecuting high profile cases of consensual sex where the parties who were not married to each other went to make whoopie in another state.

Prosecutions included people who actually didn't have sex - anything that would scandalize the snooty blue bloods was fair game as "debauchery", including attending a burlesque show.

Re:Fix: Counter Suit

[BarbaraHudson]

Fortunately, jurisprudence (you know, what judges rule) totally disagrees with you. Ask your local consumer protection office.

Re:Fix: Counter Suit

[BarbaraHudson]

"Implicit" doesn't stand up in court.

The is no "implicit" right for you to spy on activities with a third party just because you suspect your spouse of cheating. There's not even an "implicit" right to spy on your spouse. Neither of them are bound by any EULA that YOU agreed to - basic contract law - you cannot bind a 3rd party to an agreement without their consent, as expressed via a power of attorney. So, you are the one who needs "have your head checked and catch up to the 21st Century.

Re:Fix: Counter Suit

[WorBlux]

Civil law is still law, and creates real enforceable duties. There is a cause of action called tortious interference which occurs when a person intentionally damages the plaintiff's contractual or other business relationships. Why is the contract of marriage any less worth defending?

Re:Fix: Counter Suit

[WorBlux]

... than those of business'.

Re:Fix: Counter Suit

[PatientZero]

I have no doubt that you'd feel emotionally violated, upset, etc.

But as someone who shared an apartment with a woman who had been sexually abused by one person and then raped by another in whom she confided, I will never forget the sound of her screaming bloody murder in the next room upon waking from a nightmare of those experiences (luckily only a handful of times over several months). Do you frequently have nightmares where your ex-wife tortures and murders your family and friends in front of you?

Having experienced neither myself, I can only base my opinion on the effects each had on close friends. And I can say without any hesitation that I'd take cheating over rape every time.

Making recordings

[no-body]

of a person's activity without consent or court order is illegal and should be punished.
Keeping those recordings on a storage facility for later view does not change anything of the original act.
Parents doing it to their minor children w/o consent of those is within their right of parents.
So, a program installed concealed without consent is illegal.
Surveillance cameras active in an area need to be disclosed, phone conversations/email activity within a company need to be disclosed to employees that this is happening.

Now, is all this happening to those rules?
Boah!
     

Re:Making recordings

[BarbaraHudson]

Parents doing it to their minor children w/o consent of those is within their right of parents

First, only stupid parents will do that. Second, no, it's not legal. You don't have the legal right to snoop on the person they are communicating with, and if your under-age kid is sending nudies of themselves, you've just committed a felony - downloading and possession of kiddie porn.

Kids won't learn trust and boundaries if you don't demonstrate trust and respect their boundaries. Will they screw up? Most likely, same as I'm sure you did when you were their age.

Re:Making recordings

[UnknownSoldier]

> You don't have the legal right to snoop on the person they are communicating with,

A parent has the right to protect their children from potential harm. If they are using _your_ devices you have the right to track ALL usage of them regardless of the user. Bad laws are out of touch with the reality.

> and if your under-age kid is sending nudies of themselves, you've just committed a felony - downloading and possession of kiddie porn.

Are the laws really this fucked up?

So you as a parent can give them a bath, but if you catch them sending nudies you are now in possession of child porn?? WTF. Does this mean that any picture that of them without a shirt on, showing a nipple is now "magically" child porn?

How about a sudden outbreak of common sense here.

Re:Making recordings

[Obfuscant]

Are the laws really this fucked up?

No. Someone is not guilty of downloading kiddie porn because they monitor what their kids do on the computer. The kid, who is UPloading kiddie porn, can be charged.

How about a sudden outbreak of common sense here.

You must be new here. This is slashdot, proof that "common sense" isn't that common.

Re:Making recordings

[BarbaraHudson]

Both the kid uploading and the kid downloading can be charged with possession of kiddie porn. Maybe you should watch those ads on old-media TV warning kids )and their parents) of that.

Re:Making recordings

[Obfuscant]

Both the kid uploading and the kid downloading can be charged with possession of kiddie porn.

Thus proving you read nothing of what you reply to, because I already said that. Perhaps before you order someone else to watch "old media TV", you should read the postings you reply to?

But your claim was that the person doing the monitoring could be charged with downloading CP, which is patently absurd.

Re:Making recordings

[BarbaraHudson]

So, I'm an adult, I borrow your phone to make a phone call or for another purpose - guess what - you do NOT have the legal right to monitor my communications. And you most certainly don't have the right to monitor the communications of whoever I'm talking to. They come to harm because of it, they can sue your ass off because you don't have the consent of either party (so it doesn't matter if you live in a 1-party or a 2-party consent state).

Also, if you're giving your teenage kids a bath and there's not a reasonable justification (like they're physically handicapped and need help), you're the one who's "really f*cked up". Kids should know how to take a dump, give themselves a bath, and brush their teeth well before they're teenagers. You "monitoring" them is creepy beyond doubt.

Also, plenty of places allow minors to seek and receive medical care with neither the knowledge nor the consent of the parents or legal guardians. Here, a 14-year-old can get birth control or an abortion and the parents are not allowed to be informed without the child's consent. Kids are not property that you have absolute reign over.

Re:Making recordings

[chuckugly]

So is it the fault of Sony for making the camcorder, or the user of the camcorder?

Re:Making recordings

[Ol Olsoc]

So, I'm an adult, I borrow your phone to make a phone call or for another purpose - guess what - you do NOT have the legal right to monitor my communications. And you most certainly don't have the right to monitor the communications of whoever I'm talking to.

Which is why of course, no one borrows my phone.

Re:Making recordings

[Obfuscant]

Also, if you're giving your teenage kids

You started this by referring to "underage kids". The OP replied in context, and now you turn it creepy by changing to "teenage". Of course, you can resort to ad hominem after you change the context that way, so it's a win for you.

So, I'm an adult, I borrow your phone to make a phone call or for another purpose - guess what - you do NOT have the legal right to monitor my communications.

Assuming your conditional hypothesis is correct, guess what? I get the detailed phone records so I know the number you called and for how long. I don't need a subpoena or a court order. My phone, my rules. If you don't like it, don't bother asking. It won't matter, because I wouldn't trust you not to abuse my hospitality by doing something illegal, so I'd never loan you my phone to start with.

Re:Making recordings

[BarbaraHudson]

You said, and I quote:

The kid, who is UPloading kiddie porn, can be charged.

Nowhere did you say that the kid downloading the pics can be charged with possession of kiddie porn, putting a lie to your claim in your reply that you said:

Perhaps YOU need to take your own advice and read your own posts? Or invest in a time machine so you can fix things retroactively.

And if you download that same pic, especially if you believed that was what was going on, you can be charged. You had intent. You had the pics. You are not a cop doing it as part of your job. That's all that's needed.

Re:Making recordings

[Obfuscant]

Nowhere did you say that the kid downloading the pics can be charged with possession of kiddie porn,

Because in the context of that statement there was no reference to anyone downloading anything. You limited your statement to an uploader, so I did too. It should have been obvious that when I say the UPloader can be charged, I already assume the DOWNloader can be. You tried making it look like I had said that they cannot, which makes the implication of your statement a lie. Had you read my clear statement about the UPloader being chargeable, you would not have told me to watch TV to learn that the uploader could be charged.

putting a lie to your claim in your reply that you said:

Perhaps YOU need to take your own advice and read your own posts? Or invest in a time machine so you can fix things retroactively.

And if you download that same pic, especially if you believed that was what was going on, you can be charged. You had intent. You had the pics. You are not a cop doing it as part of your job. That's all that's needed.

I didn't say what you quote me as saying. You are lying. In any case, there was no reference to anyone downloading the image, so "if you download that same pic" is a retroactive addition to the context -- perhaps your attempt at a time machine?

You really don't have a grasp on the discussion here, do you?

Re:Making recordings

[BarbaraHudson]

Damn straight. Same with computers, unless you want to have to clean them out afterwards.

Re:Making recordings

[BarbaraHudson]

Children includes teenagers, and it's far more likely that parents will be snooping on their teenagers than on their 5-year-olds when it comes to sex, drugs, and rock-n-roll. And snooping on your kids IS creepy. It's also setting a bad example for your kids. Talk to them instead. If you can't talk to them, look in the mirror, because you're the bigger problem.

Re:Making recordings

[BarbaraHudson]

You:

Nowhere did you say that the kid downloading the pics can be charged with possession of kiddie porn,

Sh*t, another lie. Here's what I wrote:

Both the kid uploading and the kid downloading can be charged with possession of kiddie porn.

Seems to me that when you write "You really don't have a grasp on the discussion here, do you?", you need to invest in a mirror. You have demonstrated twice that you can't grasp simple sentences, and are just making things up, throwing crap around in the hope that some sticks. Go vote for Drumpf - he's your kind of loser.

Re:Making recordings

[SecurityGuy]

Surveillance cameras active in an area need to be disclosed

Not true. Some places will call them out because they want to deter criminal activity ("Smile! You're on camera..."), but generally, you don't need consent to take someone's picture (including video). Places where privacy would normally be expected, like bathrooms, changing rooms, etc, are an exception.

Take a stroll through a department store and look up. Those small black domes are cameras that no one tells you are there.

Re:Making recordings

[Obfuscant]

You:

Nowhere did you say that the kid downloading the pics can be charged with possession of kiddie porn,

Sh*t, another lie. Here's what I wrote:

I fucking quoted you directly from YOUR OWN POSTING. Not only do you not read what you reply to, you don't read what you, yourself, write. That's it. You've lied about what I said, you've lied about what you said. You have nothing of value to say.

Re:Making recordings

[Obfuscant]

Children includes teenagers

Standard logical fallacy: "all A is B does not mean "all B is A". You changed the context from "underage children", which does include teenagers, but also includes four and five year olds. You changed the context so you could accuse someone of being a pervert because he gives his teenage children baths. That's pathetic.

And snooping on your kids IS creepy.

It's part of being a parent.

Re:Making recordings

[BarbaraHudson]

You really are a fucking moron.

You wrote:

No. Someone is not guilty of downloading kiddie porn because they monitor what their kids do on the computer. The kid, who is UPloading kiddie porn, can be charged.

I replied:

Both the kid uploading and the kid downloading can be charged with possession of kiddie porn. Maybe you should watch those ads on old-media TV warning kids )and their parents) of that.

You did NOT previously say that the kid downloading the pics could be charged, just the uploader

No. Someone is not guilty of downloading kiddie porn because they monitor what their kids do on the computer. The kid, who is UPloading kiddie porn, can be charged.

Stop making shit up.

Re:Making recordings

[BarbaraHudson]

So somehow I'M changing the context when I always said "underage children"? Freak.

No different than recording a call

[Zibodiz]

This sort of software should be no different from recorded phone calls. As long as the user is notified in a significant, reasonable way, this type of software should be allowed (i.e. just like most large business networks notify when you log in.) If the user is not notified that they are being recorded or monitored, it should be illegal under wiretap laws.

Re:No different than recording a call

[Anonymous Coward]

A company can't be sued for making equipment that can record a phone call, can it?
This spyware should be no different. It's not the company who is liable for wiretapping, it's people who install the software who are liable if they install it in a way that violates privacy laws.

Re:No different than recording a call

[Trax3001BBS]

This sort of software should be no different from recorded phone calls. As long as the user is notified in a significant, reasonable way, this type of software should be allowed (i.e. just like most large business networks notify when you log in.) If the user is not notified that they are being recorded or monitored, it should be illegal under wiretap laws.

Washington state US here. As long as one person is aware of the recording it's ok, you being the one, it's legal.

Re:No different than recording a call

[Zibodiz]

Same where I am, but you can't record someone else's conversation; you have to be a party in the conversation to get the right to record it. As websites are concerned, that's already the case (after all, that's how most websites make their money), but when you use a desktop application, who is the second party? I would think that recording that would be similar to recording a person talking to himself, which is illegal without notification everywhere in the USA.

Your head is crooked

[s.petry]

I would surely agree if this was some snooping software that neither party knew about. I would also agree if the person had to hack a device to add the software, or even trick their cheating spouse into using a Library computer or some crap which you installed the software on. In this case, the only malfeasance possibly being claimed is that the cheater was caught.

If you were right, every single home camera service is eligible for a lawsuit too. Hint: It's not the companies fault that people do immoral things and get caught. Don't do them and don't get caught, or do them and own up to your moral choices. That last part is a really big problem to many people.

Company is monitoring

[deadwill69]

The original article I read states that the company sells this software as part of a service package. You don't store the data, they do thus putting them in the loop of the data interception. This makes them the eves dropping party and not the person doing the deed. I'm in a 'right to monitor state' and this wouldn't fly here either. IANAL, YMMV.

So can we now sue over "Alexa Related"

[aybiss]

Someone should sue over the Alexa software that was bundled in every MS operating system from (IIRC) Windows 95 thru 2003.

"Secure, web based account"

[Opportunist]

What is it now? Secure or web based, you can't have both.

Well so much for the Moto phone series

[Trax3001BBS]

and how would this affect Google? I feel I owe Google for the software they have made freely available.

The Motorola moto phones have their own tracking software meant to be of use/assistance to the user, it's ToS claims nobody but them will have access to any obtained data - (I'm afraid I laughed at that one), seeing as Google owns the company.

Don't confuse your opinion of ethics with the law

[raymorris]

> So, I'm an adult, I borrow your phone to make a phone call or for another purpose - guess what - you do NOT have the legal right to monitor my communications.

If you said "you do not have a MORAL right" you'd get no argument from me. However, since you specifcally said "legal right", I'll inform you that you're quite mistaken. Dozens of people have tried to make that argument in court and they've consistently failed. The owner of a device or network has an absolute LEGAL right to monitor the usage of their own network amd devices. Whether they have a MORAL right is of course a matter of opinion.

Suppose I install one of those "web safe" filter software packages on my own computer. You borrow my computer, and try to load midgetsfucking.com. The software I installed on my computer logs the communication between my computer and midgetsfucking.com. You sue me. You'll not only LOSE, you'll probably lose by summary judgement, without even getting a trial. Why? Because the LAW, in the US at least, is that we each have a complete right to monitor our own stuff.