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

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.

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

[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

[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

[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: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.