United States: The Sixth Circuit Expands Potential Federal Wiretap Act Liability For Developers And Sellers Of Cloud-Based Monitoring Software

Last week, the Sixth Circuit expanded potential liability for violations of the Federal Wiretap Act for manufacturers of devices that can be used for wiretapping, like monitoring software, in reversing the dismissal of a complaint in Luis v. Zang, et. al., No. 14-3601 (Sixth Cir. Aug. 16, 2016). In recognizing a private right of action against manufacturers of wiretap devices, the court held that where a company provides cloud-based services to support and enable wiretapping software it sells, it is sufficiently engaged in the act of interception to expose it to civil claims brought by the individuals whose communications were intercepted.

Federal Wiretap Act

The Federal Wiretap Act makes it a criminal offense, with certain specific exceptions, for any person to "intentionally intercept[], endeavor[] to intercept, or procure[] any other person to intercept or endeavor to intercept, any wire, oral, or written communication," or to "manufacture[], assemble[], possess[], or sell[] any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications[.]" 18 U.S.C. § 2511(1)(a) & 2512(1)(b). To fall within the scope of the Federal Wiretap Act, the interception of the communication must be contemporaneous. The Federal Wiretap Act also provides a private right of action for "any person whose ... communication is intercepted, disclosed, or intentionally used in violation of [theWiretap Act]" against "the person or entity ... which engaged in that violation[.]" 18 U.S.C. 2520(a).

Background And District Court Decision

Awareness Technologies, Inc. (Awareness) manufactured and marketed WebWatcher, a software program that allegedly enabled users to intercept electronic communications, such as emails and instant messages, in real time on any devices on which the program was installed. After intercepting the communications, WebWatcher forwarded those communications to servers owned and operated by Awareness, where the communications were then stored. WebWatcher users could access Awareness's servers and review the communications any time after the communications were intercepted and stored.

Suspecting that his wife was communicating with other men, Joseph Zang installed WebWatcher on a computer that she used. The program intercepted several emails and instant messages between Zang's wife and Javier Luis. Zang used the intercepted communications as leverage against his wife in a subsequent divorce proceeding. When Luis discovered that Zang had used the WebWatcher program, he filed a lawsuit against Awareness, Zang, and several other defendants, alleging violations of 18 U.S.C. §§ 2511(1)(a) and 2512(1)(b), as well as various state law claims. The district court dismissed the complaint, finding that Awareness did not "intercept" Luis' communications because it was Zang, and not Awareness, that had installed the WebWatcher program, and Awareness could not be held liable simply for manufacturing a product that others used to violate the Federal Wiretap Act.

Sixth Circuit Decision

In Luis v. Zang, et. al., No. 14-3601 (Sixth Cir. Aug. 16, 2016), the Sixth Circuit reversed the district court's dismissal, finding that the complaint had sufficiently alleged that Awareness had intercepted Luis' communications contemporaneously with their transmission in violation of 18 U.S.C. § 2511.

As an initial matter, the Court found the allegations of contemporaneous interception sufficient, relying upon the marketing materials for WebWatcher, which Luis had referenced in the complaint. See id. at *12-15. Those materials stated that WebWatcher enabled its users to review a person's electronic communications "in near real-time, even while the person is still using the computer" and that "any deviation from real-time monitoring results not from delays regarding when the communications are acquired but from variations in the 'Internet connection speed of the computer being monitored.'" Id. at * 14. The marketing materials also stated that "[e]ven if a document is never even saved, WebWatcher still records it." Id. The Court found that the marketing materials supported the reasonable inference that the WebWatcher program acquired electronic communications as they were being sent and not after they were stored. See id. at *14-15.

The Court then held that the complaint sufficiently alleged that Awareness itself was responsible for the interception, noting that the WebWatcher program automatically acquired communications and transmitted them to Awareness's servers "without any active input from the user." Id. at *17. In reaching its conclusion, the Court found "Awareness's continued operation of the WebWatcher program—even after that program is sold to a user" particularly persuasive. Id. at *18.

In addition, the Sixth Circuit also held that the complaint had sufficiently alleged that Awareness had knowingly manufactured a device designed to intercept communications in violation of 18 U.S.C. § 2512(1)(b) and that Luis had a private cause of action under 18 U.S.C. § 2520 for that violation. See id. at *19-23. The Eleventh and Fifth Circuits and most district courts had previously concluded that § 2520 authorizes a civil suit only against the parties engaged in the interception of communications and did not authorize civil suits against manufacturers or sellers of wiretap devices. See, e.g., DirecTV, Inc. v. Treworgy, 373 F.3d 1124, 1127 (11th Cir. 2004); DirecTV Inc. v. Robson, 420 F.3d 532, 539 & n.31 (5th Cir. 2005). While agreeing with those courts' interpretation of § 2520, Court went on to find that Awareness could be held civilly liable for the sale of its software, because its cloud services, which hosted the intercepted communications, made it actively engaged in its customer's acts of interception. The Court found that knowledge that the device was used for wiretapping purposes could be inferred from the Awareness' advertisements which referenced WebWatcher as a way for suspicious spouses to monitor their partner's communications without their partner's knowledge or consent. See id. at *4, 19. The Sixth Circuit distinguished these facts from the simple possession of a wiretapping device, which it stated would not support a cause of action under 18 U.S.C. § 252. Id. at *23.


The implications of the Luis decision are significant, creating the potential risk of liability under the Federal Wiretap Act for companies that manufacture, market, and sell software that monitors electronic communications. Private litigants may now sue (at least in the Sixth Circuit) companies that sell products that can be used for wiretapping and that provide after-sale cloud services and support for those products. In light of the Luis decision, these companies may want to reevaluate the type of after-sale services and support they currently offer. That it continued to be actively involved with the operation of WebWatcher after the program was sold to customers was integral to the Sixth Circuit's finding that liability could exist against Awareness. The Luis decision may also prompt companies to reassess their advertisements concerning their products. The Sixth Circuit's decision was based on many of Awareness' own marketing statements concerning what the WebWatcher program could do and what it should be used for. Companies that sell products that can be used for wiretapping may want to market their products in such a way as to emphasize the legitimate purposes of those products. They may also want to add disclaimers against using their products in ways that violate the law. ​​​​​​

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.

Events from this Firm
17 Oct 2017, Conference, California, United States

Women are a more powerful presence in business than ever, as entrepreneurs and corporate leaders. Join us for a half-day packed with real-worl​d know-how, firsthand experiences and an in-depth look at the entrepreneurial climate today – all designed to help entrepreneurial women take their businesses (and their careers) to the next level.​​

17 Oct 2017, Seminar, California, United States

Ivy Associates presents the annual All Hands Meeting in coordination with the Silicon Valley Association of General Counsel, an association of chief legal officers from more than one hundred leading technology and life science companies.​

17 Oct 2017, Seminar, California, United States

TEDx Wilmington is holding the first TEDx Salon dedicated to ideas worth spreading in transportation on Tuesday, October 17, 2017 in Wilmington, Delaware.

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
Check to state you have read and
agree to our Terms and Conditions

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.

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 by clicking here .

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.


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.