United States: The Embarq Decision - 10th Circuit Clarifies No ECPA Liability For Behavioral Advertising Participant

A federal appellate court in Denver recently upheld summary judgment for an Internet service provider (ISP) defending class action allegations that it violated the Electronic Communications Privacy Act of 1986 (ECPA) by acquiring information about subscriber websurfing activities as part of a program to tailor online advertisements for its subscribers.

Online advertisers and advertising firms, as well as web publishers and website hosts, will have just as much interest as communication carriers in the Tenth Circuit's year-end decision, which solidifies a spate of recent district court decisions confirming the compliance of various online advertising platforms with state and federal privacy laws. The new decision is one of very few federal appellate court decisions construing ECPA's application to online behavioral advertising, and distinguishes entities directly acquiring Internet traffic from businesses whose participation is less direct and therefore not subject to ECPA liability under an aiding and abetting theory. The decision also recognizes that by defining authorized "interceptions" to include ordinary-course-of-business acquisitions of electronic communications, Congress immunized the ISP's challenged activity from ECPA claims.


Kirch v. Embarq Management Co., (Dec. 28, 2012 10th Cir.) involved an online advertising system developed by now-defunct NebuAd Inc., which used a device (called an "Ultra Transparent Device" or "UTA") installed in an ISP server to monitor Internet traffic of the ISP's customers.1 Anonymized segments of that traffic were allegedly transmitted to and used by NebuAd to compile user profiles and then deliver targeted online advertising to the ISP's customers. In November 2007, Embarq contracted with NebuAd to test the system at a facility Embarq maintained in Gardner, Kansas, where the Kirches subscribed to Embarq's Internet service. Under the contract, advertising profits were split by NebuAd and its ISP partners.2 After a Congressional investigation raised concerns about the NebuAd system, Embarq stopped using it in March 2008.

Plaintiffs filed suit in the District of Kansas, alleging that Embarq's deployment of NebuAd's online advertising technology constituted an unlawful interception of electronic communications in violation of ECPA. Plaintiffs' theory was that because Embarq failed to adequately notify its Internet service subscribers about the use of NebuAd's system, customers' Internet traffic was being unlawfully intercepted by the UTA device in violation of ECPA.3 ECPA prohibits the interception of "electronic communication" and imposes criminal and civil liability. 18 U.S.C. §§ 2511, 2520. Under ECPA, Internet traffic constitutes "electronic communication." Id. §2510(12). ECPA defines "intercept" as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device," but the statute excludes from that definition a number of ordinarycourse- of-business acquisitions of communications, including "any telephone or telegraph instrument, equipment, or facility, or any component thereof . . . (ii) being used by a provider of wire or electronic communication service in the ordinary course of business . . . ." Id. §2510(5)(a).

After discovery, Embarq moved for summary judgment which the district court granted. The district court first ruled that Embarq had not intercepted plaintiffs' communications because, regardless of what information the NebuAd System extracted from Internet traffic traversing through the UTA, Embarq had no access to that information or to the profiles constructed from that information. Plaintiffs' theory was that NebuAd extracted contents of the communications, not Embarq, and there was no evidence that Embarq actually acquired the contents of digitized Internet traffic flowing through its servers. Because ECPA defines "intercept" to mean "the acquisition of the contents" of a communication, and because "contents" is defined to mean not merely the medium of an electronic communication but "the substance, purport or meaning of that communication," Embarq had not "acquired" its subscribers' electronic communications under ECPA. The district court then rejected the argument that Embarq could be held liable on a theory of aiding and abetting NebuAd's alleged "interceptions," because ancillary liability theories of "aiding and abetting" are not available under ECPA.


The Tenth Circuit affirmed summary judgment, expanding upon both the limitations of plaintiffs' aiding and abetting theory and application of ECPA's ordinarycourse- of-business defenses. The Tenth Circuit held that because ECPA creates no aiding and abetting civil liability, Embarq could be liable under the statute only if Embarq itself intercepted the plaintiffs' Internet communications. Because it was undisputed that the ISP Embarq did not acquire the contents of the Kirches' Internet traffic (a function the NebuAd device allegedly performed when that traffic traversed the UTA), nor did Embarq have access to that data or to the profiles NebuAd constructed from it, Embarq could not be found to have intercepted the plaintiffs' electronic communications. The Tenth Circuit observed that ECPA's predecessor statute imposed civil liability for those who "procure" an interception, but ECPA's 1986 enactment amended the statute's civil provisions by deleting the "procure" clause and thereby removed aiding and abetting liability from the statutory regime.

The Tenth Circuit's decision also acknowledged undisputable evidence that Embarq's use of the NebuAd UTA gave that ISP no more of its users' electronic communications than Embarq otherwise had in the ordinary course of its business as a service provider. Embarq was therefore shielded from liability under the statutory authority granted by ECPA for "any instrument" being "used by a provider of wire or electronic communication service in the ordinary course of its business . . . ." 18 U.S.C. § 2510(5)(a). Embarq did not obtain access to the digitized Internet traffic of its subscribers in any way other than as an ISP carrier handling its users' traffic, nor did the ISP have access to the data and profiles that NebuAd allegedly derived from Embarq's customer traffic via its UTA. Since Embarq did not come into possession of anything more than the Internet traffic it already handled in the ordinary course of its ISP service, the conduct alleged did not place Embarq's conduct outside section 2510(5)'s safe harbor provisions.


Embarq makes it clear that carriers, advertisers and website publishers are not exposed to civil ECPA claims simply by participating in online advertising programs. But participants in online advertising programs must remain diligent to ensure that programs comply with applicable laws. While the facts presented did not take this case beyond "aiding and abetting" liability, "many variables enter into the equation on how much aid is 'substantial aid' sufficient to invoke liability." Halberstam v. Welch, 705 F.2d 472, 483 (D.C. Cir. 1983). Even where "aiding and abetting" theories are not available, a party might remain subject to primary or joint liability theories when it knowingly participates in an enterprise or conspiracy through direct commission of unlawful acts that further the primary wrongdoer's goals. Id. at 479; Restatement of Torts 2d § 876(b). This sort of "enterprise" or "instrumentality" liability theory does not rely on "aiding and abetting" principles – it is a theory of direct liability.

The Embarq decision also promotes clarity about the types of electronic communication interceptions authorized by ECPA. Plaintiffs' lawyers have been challenging online and mobile advertising programs under a variety of statutory and traditional common law tort theories, getting modest settlements in some cases while losing motions to dismiss in most others. The circumstances under which a business can access Internet communications in the ordinary course of its business is a question that Congress left to Section 2510(5)(a)'s "safe harbor" provision and, consistent with ECPA, an advertiser or publisher's participation in these programs does not violate the Act.


1 Embarq was initially sued in the Northern District of California as part of a larger putative class action against NebuAd and all ISP companies who deployed its advertising service. The ISP defendants successfully moved to dismiss that action on jurisdictional grounds. See Valentine v. NebuAd, Inc., et al., No. C08-05113 TEH (N.D. Cal. Oct. 6, 2009).

2 See Valentine v. NebuAd, Inc., No. C08-05113 THE (N.D. Cal. April 4, 2011) (Order denying NebuAd motion to dismiss)

3 The Kirches also asserted state law claims and a violation of the federal Computer Fraud and Abuse Act, but these additional claims were dismissed with prejudice by stipulation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions