In Re FACEBOOK INTERNET TRACKING LITIGATION
Filing
137
STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d filed byPerrin Aikens Davis, Brian K. Lentz, Cynthia D. Quinn, Matthew J. Vickery. (Attachments: #1 Exhibit A)(Straite, David) (Filed on 10/4/2016)
Exhibit A
Luis v. Zang, --- F.3d ---- (2016)
2016 WL 4363151
Only the Westlaw citation is currently available.
United States Court of Appeals,
Sixth Circuit.
[4] in a matter of first impression, a defendant that
allegedly violates the Wiretap Act by manufacturing,
marketing, and selling a violative device, is subject to a
private suit only when that defendant also plays an active
role in the use of the relevant device;
Javier Luis, Plaintiff–Appellant,
v.
Joseph Zang et al., Defendants,
Awareness Technologies, Defendant–Appellee.
[5] user sufficiently alleged that his communications were
intercepted under Ohio Wiretap Act;
No. 14-3601
|
Argued: April 27, 2016
|
Decided and Filed: August 16, 2016
|
Rehearing En Banc Denied September 16, 2016 *
Synopsis
Background: Internet user who developed an online
personal relationship with married woman brought action
against husband and manufacturer of a device that
allowed surreptitious monitoring of computer activity,
claiming that husband used the device to capture and
disclose user's otherwise private online communications
with wife, in violation of the federal Wiretap Act and Ohio
law. The United States District Court for the Southern
District of Ohio, Susan J. Dlott, J., 2014 WL 2804035,
adopted the report and recommendation of Stephanie
K. Bowman, United States Magistrate Judge, 2013 WL
811816, and dismissed for failure to state a claim. User
appealed.
[6] user sufficiently alleged that his communications were
used without authorization under the Ohio Wiretap Act;
and
[7] user sufficiently stated an invasion of privacy claim
under Ohio law.
Reversed and remanded.
Alice M. Batchelder, Circuit Judge, filed a dissenting
opinion.
West Headnotes (17)
[1]
Federal Courts
Pleading
The Court of Appeals reviews de novo a
district court's decision to dismiss a complaint
for failure to state a claim. Fed. R. Civ. P.
12(b)(6).
Cases that cite this headnote
Holdings: The Court of Appeals, Ronald Lee Gilman,
Circuit Judge, held that:
[2]
To survive a motion to dismiss for failure to
state a claim, a complaint must state a claim to
relief that rises above the speculative level and
is plausible on its face. Fed. R. Civ. P. 12(b)
(6).
[1] in a matter of first impression, an electronic
communication must be acquired contemporaneously
with its transmission to violate the Wiretap Act;
[2] user sufficiently alleged that his communications were
acquired contemporaneously with their transmission;
[3] user sufficiently alleged that manufacturer produced a
device primarily useful for the surreptitious interception
of electronic communications;
Federal Civil Procedure
Insufficiency in general
Cases that cite this headnote
[3]
Federal Civil Procedure
Insufficiency in general
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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Luis v. Zang, --- F.3d ---- (2016)
A claim has facial plausibility, as would
survive a motion to dismiss for failure to
state a claim, when the plaintiff pleads factual
content that allows the court to draw the
reasonable inference that the defendant is
liable for the misconduct alleged. Fed. R. Civ.
P. 12(b)(6).
[7]
Federal Civil Procedure
Pro Se or Lay Pleadings
A court holds pro se pleadings to less stringent
standards than formal pleadings drafted by
lawyers.
Cases that cite this headnote
Cases that cite this headnote
[8]
[4]
Federal Civil Procedure
Insufficiency in general
In order for an “intercept” to occur for
purposes of the Wiretap Act, which prohibits
the interception and disclosure of wire, oral,
or electronic communications, the electronic
communication at issue must be acquired
contemporaneously with the transmission of
that communication. 18 U.S.C.A. §§ 2510(4),
2511.
A complaint must contain either direct or
inferential allegations respecting all material
elements necessary for recovery under a viable
legal theory, to survive a motion to dismiss for
failure to state a claim. Fed. R. Civ. P. 12(b)
(6).
Cases that cite this headnote
[5]
Cases that cite this headnote
Federal Civil Procedure
Matters considered in general
In evaluating a motion to dismiss for failure
to state a claim, a court may consider
the complaint and any exhibits attached
thereto, public records, items appearing in the
record of the case and exhibits attached to
defendant's motion to dismiss so long as they
are referred to in the complaint and are central
to the claims contained therein. Fed. R. Civ.
P. 12(b)(6).
[9]
Federal Courts
Dismissal for failure to state a claim
The Court of Appeals must accept a
complaint's well-pleaded factual allegations
as true, construe the complaint in the light
most favorable to the plaintiff, and draw all
reasonable inferences in the plaintiff's favor,
on review of a district court's decision to grant
a defendant's motion to dismiss for failure to
state a claim. Fed. R. Civ. P. 12(b)(6).
Cases that cite this headnote
Telecommunications
Computer communications
Internet user's complaint, stating that the
communications between him and a married
woman were not stored on the married
woman's computer hard drive, that device
for surreptitiously monitoring computer
activity, installed by married woman's
husband, intercepted his communications
and routed them to its manufacturer's
server facility, and that marketing materials
for the device referenced its ability to
monitor communications in “near real-time,”
sufficiently alleged that his communications
were acquired contemporaneously with their
transmission, as required to as required to
state cause of action under Wiretap Act
against manufacturer. 18 U.S.C.A. § 2511.
1 Cases that cite this headnote
[6]
Telecommunications
Acts Constituting Interception or
Disclosure
Cases that cite this headnote
[10]
Telecommunications
Wiretapping in general
Internet user's complaint, stating that
manufacturer of a device for surreptitiously
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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Luis v. Zang, --- F.3d ---- (2016)
monitoring computer activity marketed its
device as a means for one spouse to
illegally monitor the communications of
another spouse in a way that went far
beyond any legitimate purpose, sufficiently
alleged that manufacturer produced a
device primarily useful for the surreptitious
interception of electronic communications,
as required to state cause of action
under Wiretap Act's prohibition against
manufacturing, marketing, selling, and
operating a wiretapping device. 18 U.S.C.A.
§§ 2512(1)(b), 2520.
[13]
Internet user's complaint, alleging that
manufacturer of a device that allowed
surreptitious monitoring of computer activity
intercepted his electronic communications,
that
manufacturer
stored
electronic
communications on its own servers, and that
manufacturer disclosed the communications
to a third party, sufficiently alleged that
manufacturer “used” the communications,
as required to state cause of action
under the Ohio Wiretap Act's prohibition
on unauthorized use of an electronic
communication. Ohio Rev. Code Ann. §
2933.52(A)(3).
Cases that cite this headnote
[11]
Telecommunications
Persons liable; immunity
A defendant that allegedly violates the
Wiretap Act by manufacturing, marketing,
and selling a violative device is subject to a
private suit only when that defendant also
plays an active role in the use of the relevant
device to intercept, disclose, or intentionally
use a plaintiff's electronic communications. 18
U.S.C.A. §§ 2512(1)(b), 2520.
Cases that cite this headnote
[14]
Telecommunications
Computer communications
Internet user's complaint, alleging that
manufacturer of a device that allowed
surreptitious monitoring of computer
activity forwarded his instant messages, emails, and other electronic communication
to manufacturer's own servers, that
manufacturer stored the communications for
later disclosure to a third party, and that
manufacturer subjected the communications
to a content filtering system, sufficiently
alleged that manufacturer intercepted the
communications, as required to state cause of
action under the Ohio Wiretap Act. Ohio Rev.
Code Ann. §§ 2933.51(C), 2933.52(A)(1).
Cases that cite this headnote
Telecommunications
Interception or Disclosure of Electronic
Communications; Electronic Surveillance
Internet user's complaint, alleging that
manufacturer of a device that allowed
surreptitious monitoring of computer
activity marketed its device with the
expectation that purchasers would use the
device for surreptitiously monitoring the
communications of other persons, that
manufacturer intentionally targeted its device
at spouses in its marketing campaign, and
that the marketing went far beyond any legal
uses that the device might have, sufficiently
alleged that manufacturer had a reason to
know that any communications it obtained
through the device violated the Ohio Wiretap
Act, as required to state cause of action under
the Act's prohibition on unauthorized use
of an electronic communication. Ohio Rev.
Code Ann. § 2933.52(A)(3).
Cases that cite this headnote
[12]
Telecommunications
Interception or Disclosure of Electronic
Communications; Electronic Surveillance
Cases that cite this headnote
[15]
Torts
Intrusion
Under Ohio law, prevailing on an intrusion
claim requires a plaintiff to show that the
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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Luis v. Zang, --- F.3d ---- (2016)
defendant caused a wrongful intrusion into
one's private activities in such a manner
as to outrage or cause mental suffering,
shame or humiliation to a person of ordinary
sensibilities.
Cases that cite this headnote
[16]
Torts
Intrusion
A plaintiff must have a reasonable expectation
of privacy in the area or subject matter in
which the alleged intrusion occurs to bring
an invasion of privacy claim under Ohio law;
this expectation depends on the totality of the
circumstances.
Cases that cite this headnote
[17]
Torts
Particular cases in general
Allegations that an Internet user believed
that his communications and conversations
with a married woman were private, that
husband's installation of a device that allowed
surreptitious monitoring of computer activity
allowed husband access to communications
that husband would not otherwise be privy
to, that manufacturer of the device intercepted
user's communications in violation of the
federal Wiretap Act and the Ohio Wiretap
Act, and that learning of manufacturer's
conduct caused user surprise and dismay,
sufficiently stated an invasion of privacy claim
against manufacturer under Ohio law. 18
U.S.C.A. § 2520; Ohio Rev. Code Ann. §§
2933.52(A)(1), 2933.52(A)(3).
Cases that cite this headnote
Appeal from the United States District Court for the
Southern District of Ohio at Cincinnati. No. 1:12cv-00629—Susan J. Dlott, District Judge.
Attorneys and Law Firms
ARGUED:
Clayton
L.
Wiggins,
Vanderbilt
APPELLATE Litigation Clinic, Nashville, Tennessee, for
Appellant. Bernard W. Wharton, McCaslin, Imbus &
McCaslin, Cincinnati, Ohio, for Appellee. ON BRIEF:
Clayton L. Wiggins, Alistair E. Newbern, Vanderbilt
Appellate Litigation Clinic, Nashville, Tennessee, for
Appellant. Bernard W. Wharton, McCaslin, Imbus &
McCaslin, Cincinnati, Ohio, for Appellee. Javier Luis,
Tampa, Florida, pro se.
Before: MERRITT, BATCHELDER, and GILMAN,
Circuit Judges.
GILMAN, J., delivered the opinion of the court in which
MERRITT, J., joined. BATCHELDER, J. (pp. –––– –
––––), delivered a separate dissenting opinion.
OPINION
RONALD LEE GILMAN, Circuit Judge.
*1 Javier Luis, a resident of Florida, developed an
online personal relationship with Ohio resident Catherine
Zang. The relationship was apparently platonic, but
Catherine's husband, Joseph Zang, was nonetheless
suspicious of his wife's online activities. This caused
Joseph to secretly install a product known as WebWatcher
on the computer used by Catherine in order to monitor
her communications. According to Luis, WebWatcher
and its manufacturer, Awareness Technologies, Inc.,
surreptitiously intercepted the emails, instant messages,
and other communications that were sent between Luis
and Catherine. Awareness then allegedly disclosed the
communications to Joseph, who used them as leverage to
divorce Catherine on favorable terms.
Upset by the capture and disclosure of his otherwise
private communications, Luis filed suit against Joseph
Zang, Awareness, and several others. He eventually
settled his claims against all the defendants other than
Awareness. With respect to Awareness, Luis alleged that
the involvement of its WebWatcher “spyware” in secretly
recording the communications at issue violated the federal
Wiretap Act, the Ohio Wiretap Act, and Ohio common
law. The district court concluded that Luis had failed
to state a cause of action against Awareness, leading to
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Luis v. Zang, --- F.3d ---- (2016)
the present appeal. Because the district court's dismissal
failed to take into account the extent to which Awareness
itself was allegedly engaged in the asserted violations,
we REVERSE the judgment of the district court and
REMAND the case for further proceedings consistent
with this opinion.
I. BACKGROUND
A. Factual background
This case is on appeal from the district court's order
granting Awareness's motion to dismiss for failure to state
a claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The account that follows is consequently based
on the facts as alleged in Luis's amended complaint. See
Boland v. Holder, 682 F.3d 531, 534 (6th Cir. 2012) (“Like
a district court considering a motion to dismiss in the first
instance, we accept all facts alleged in the complaint as
true.”).
In early 2009, Luis made contact with Catherine Zang
while participating in an online “Metaphysics” chatroom
hosted by America Online. Catherine at the time was
married to Joseph Zang, but the marriage was not a happy
one. This resulted in Luis reaching out to Catherine and
“develop[ing] a caring relationship with her.” The two
never met in person, but they had “daily communications”
that were sent via the internet between Luis's home in
Florida and the Zang residence in Ohio.
Joseph suspected that Catherine was communicating
with other men and decided to take steps to monitor
Catherine's actions. He accordingly installed a software
program known as “WebWatcher” on the computer used
by Catherine. According to Luis's complaint, this program
intercepts electronic communications such as emails and
instant messages in real time as the communications
are sent. The program then contemporaneously forwards
the intercepted communications to servers maintained
by Awareness in California, where the communications
are stored for later review. A WebWatcher user such as
Joseph may then access the servers and peruse copies
of the communications at issue at any time after the
communications are intercepted and stored.
*2 Joseph allegedly installed WebWatcher on the
computer used by Catherine sometime in early 2009,
and he used the program to intercept emails and instant
messages sent between Luis and Catherine for several
months thereafter. He then used these communications as
leverage to help his attorney secure favorable terms for a
divorce from Catherine in 2010.
WebWatcher is manufactured and marketed by
Awareness. The program allegedly “records all PC activity
including emails, IMs, websites visited, web searches,
Facebook/MySpace activity, and anything typed in real
time.” According to Awareness's advertisements, the
WebWatcher program creates and stores a record of
whatever is sent to or from the computer in question.
The process occurs in “near real-time, even while [a]
person is still using the computer.” This means that even
if a computer user deliberately deletes or fails to save
a communication, the WebWatcher program will record
and save it for later retrieval from servers owned and
maintained by Awareness.
The process also allows a WebWatcher user to access
the communications from any location with an internet
connection. Intercepted communications, in other words,
are stored in and made available to the user from
Awareness's servers, so a WebWatcher user can access the
intercepted communications without physically accessing
the computers that were used to send or receive those
communications.
In addition, Awareness provides a service known
as “Alert Word.” This software program scans the
captured communications and monitors them for certain
keywords that may be of interest to the WebWatcher
user. The program then takes screenshots of the
relevant communications and highlights them so that the
WebWatcher user can view the communications without
sorting through material deemed irrelevant to the user.
According to Luis's complaint, Awareness markets the
WebWatcher program as a means for suspicious spouses
to illegally monitor their partners' communications
without their partners' knowledge or consent. Luis
specifically alleges that Awareness “intentionally targets
their product at spouses in their marketing campaigns
—enticing them with the lure of finding out everything
that goes on in the targeted computer's private
accounts.” (Emphasis in original.) This marketing
strategy allegedly goes “far beyond” any ostensibly
legitimate purpose (such as monitoring a child's use of
the Internet) that WebWatcher might otherwise have.
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Luis v. Zang, --- F.3d ---- (2016)
Moreover, the marketing is allegedly similar to other
companies' marketing strategies that the Federal Trade
Commission has in the past condemned as encouraging
illegal spying. Luis thus contends that Awareness “knew
or should have known” that purchasers of WebWatcher
“would use it for illegal purposes.”
B. Procedural background
Luis became aware of Joseph's use of WebWatcher in the
summer of 2010. He thereafter sued Awareness, Joseph,
and several other defendants in the United States District
Court for the Middle District of Florida. In August 2012,
that court transferred the case to the United States District
Court for the Southern District of Ohio.
As relevant to the current appeal, the complaint asserts
three causes of action against Awareness. It first alleges
that Awareness intentionally intercepted Luis's electronic
communications, in violation of 18 U.S.C. § 2511 (part
of the federal Wiretap Act). The complaint next alleges
that Awareness violated 18 U.S.C. § 2512 (another part
of the federal Wiretap Act) by manufacturing, marketing,
selling, and operating a device that Awareness knew or
had reason to know was to be used primarily for the
surreptitious interception of electronic communications.
Finally, the complaint asserts that Awareness violated
Ohio state law by (1) intercepting and using his electronic
communications within the meaning of Ohio's Wiretap
Act, and (2) invading his privacy within the meaning of
the common-law tort.
*3 Awareness moved to dismiss Luis's complaint under
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
It argued that (1) WebWatcher does not “intercept”
communications as defined in the federal Wiretap Act, (2)
Awareness cannot be held liable in a civil action because
it did not “engage in” the alleged violation of the Act, and
(3) Luis's factual allegations lacked enough detail to plead
a claim under state law.
A magistrate judge was directed to prepare a
Report and Recommendation (R&R) evaluating
Awareness's arguments. The R&R concluded that Luis's
communications had in fact been “intercepted” as that
term is used in the federal Wiretap Act, but the magistrate
judge nonetheless recommended that Luis's claims be
dismissed. With respect to the claimed violation of 18
U.S.C. § 2511, the R&R concluded that Awareness itself
did not “intercept” Luis's communications because it was
Joseph—not Awareness—that installed the WebWatcher
program on the computer used by Catherine. And with
respect to the claimed violation of 18 U.S.C. § 2512, the
R&R concluded that Awareness could not be held liable
simply for manufacturing a product that others—such
as Joseph—used to violate the Wiretap Act. The R&R
further determined that Luis failed to allege sufficient
facts to support any of his state-law theories of liability.
As a result, the R&R concluded that all claims against
Awareness should be dismissed.
The district court adopted the R&R in June 2014 and
subsequently dismissed all claims against Awareness. Luis
now appeals, arguing that he has adequately pleaded all
three of the claims described above.
II. ANALYSIS
A. Standard of review
[1] [2] [3] [4] We review de novo the district court's
decision to dismiss Luis's complaint under Rule 12(b)(6)
of the Federal Rules of Civil Procedure. See Kreipke v.
Wayne State Univ., 807 F.3d 768, 774 (6th Cir. 2015).
To survive a motion to dismiss under Rule 12(b)(6), a
complaint must state a claim to relief that rises “above
the speculative level” and is “plausible on its face.”
Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir.
2009) (internal quotation marks omitted). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009). The complaint must therefore
“contain either direct or inferential allegations respecting
all material elements necessary for recovery under a viable
legal theory.” Kreipke, 807 F.3d at 774 (internal quotation
marks omitted).
[5]
[6] In evaluating a motion to dismiss, we “may
consider the complaint and any exhibits attached thereto,
public records, items appearing in the record of the case
and exhibits attached to defendant's motion to dismiss
so long as they are referred to in the complaint and are
central to the claims contained therein.” Id. (alterations
and internal quotation marks omitted). We must accept
the complaint's well-pleaded factual allegations as true,
construe the complaint in the light most favorable to
the plaintiff, and draw all reasonable inferences in the
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Luis v. Zang, --- F.3d ---- (2016)
plaintiff's favor. Bassett v. Nat'l Collegiate Athletic Ass'n,
528 F.3d 426, 430 (6th Cir. 2008).
[7] Moreover, Luis was acting pro se when he filed
the relevant complaint in this case. We hold such pro
se pleadings “to less stringent standards than formal
pleadings drafted by lawyers.” Williams v. Curtin, 631
F.3d 380, 383 (6th Cir. 2011) (internal quotation marks
omitted). Luis's pleadings should therefore be “liberally
construed.” See id.
B. Luis sufficiently alleged facts supporting a cause of
action against Awareness for illegal interception of an
electronic communication, in violation of 18 U.S.C. § 2511
*4 Luis's first claim is that Awareness violated 18 U.S.C.
§ 2511. That section reads as follows:
(1) Except as otherwise specifically
provided in this chapter[,] any
person
who—(a)
intentionally
intercepts, endeavors to intercept,
or procures any other person to
intercept or endeavor to intercept,
any wire, oral, or electronic
communication ... shall be punished
[by a fine or by imprisonment.]
18 U.S.C. § 2511(1)(a). Section 2511 thus criminalizes the
intentional interception of an electronic communication.
See id. A separate section of the Wiretap Act then provides
a private cause of action for persons who are victimized
by such criminal conduct:
(a) In general.—Except as provided
in section 2511(2)(a)(ii), any person
whose wire, oral, or electronic
communication is intercepted,
disclosed, or intentionally used in
violation of this chapter may in
a civil action recover from the
person or entity, other than the
United States, which engaged in
that violation such relief as may be
appropriate.
18 U.S.C. § 2520(a).
Luis's first claim thus divides into two parts: one
is the allegation that Awareness violated § 2511 by
“intercepting” his communications, and the other is the
allegation that, because Luis's communications were so
intercepted, he has the right under § 2520 to pursue a
private cause of action for that violation. Awareness does
not challenge the second part of Luis's claim. In other
words, Awareness concedes that if it is deemed to have
intercepted Luis's communications in violation of § 2511,
then Luis is entitled to bring a private cause of action
against Awareness under § 2520 to redress that violation.
But Awareness does contest the first part of Luis's claim. It
maintains that his claim falters because WebWatcher does
not “intercept” electronic communications. Awareness
asserts that the term “intercept” applies only to situations
in which a device captures a communication “either before
[the communication] reaches the intended recipient or
contemporaneous with the transmission[,] but not after
it reaches the destination where it is placed in electronic
storage.” It contends that WebWatcher does not satisfy
this contemporaneity requirement because the device
ostensibly offers only the ability to “record[ ] various
activities that occur” on a computer and then “review
[those records] at a later date.” Put differently, Awareness
maintains that its device involves no “contemporaneous”
capture of communications because “the user of Web
Watcher cannot view [a] communication[ ] at the
time the communication is transmitted.” As explained
below, Awareness correctly argues that the Wiretap Act
imposes a contemporaneity requirement on the term
“intercept,” but Awareness is incorrect in arguing that
Luis's allegations about WebWatcher fail to satisfy this
requirement.
1. The term “intercept” as used in 18 U.S.C.
§ 2511 requires that an acquisition of a
communication occur contemporaneously
with the transmission of the communication
An “intercept” for purposes of the Wiretap Act is
defined 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.” 18 U.S.C. § 2510(4). The Act does not
explicitly require that the acquisition of a communication
occur contemporaneously with the transmission of the
communication. See id. Nonetheless, courts interpreting
this language have uniformly concluded that an intercept
requires contemporaneity. See, e.g., Fraser v. Nationwide
Mut. Ins. Co., 352 F.3d 107, 113 (3d Cir. 2003), as amended
(Jan. 20, 2004) (“Every circuit court to have considered
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Luis v. Zang, --- F.3d ---- (2016)
the matter has held that an ‘intercept’ under the [Act] must
occur contemporaneously with transmission.”).
*5 The Fifth Circuit explained the basis for this
requirement in Steve Jackson Games, Inc. v. U.S.
Secret Service, 36 F.3d 457 (5th Cir. 1994). In
that case, the court observed that the Wiretap Act
originally applied only to wire communications and
oral communications. Id. at 461. Congress then passed
the Electronic Communications Privacy Act (ECPA) in
1986, in which the Wiretap Act was amended to cover
“electronic communications.” Id.
In doing so, Congress drew a distinction between
“electronic communications” and “electronic storage.”
Id. The former term is defined as “any transfer
of signs, signals, writing, images, sounds, data, or
intelligence of any nature transmitted in whole or in
part by a wire, radio, electromagnetic, photoelectronic
or photooptical system.” 18 U.S.C. § 2510(12). In
contrast, “electronic storage” is defined as “(A) any
temporary, intermediate storage of a wire or electronic
communication incidental to the electronic transmission
thereof,” and “(B) any storage of such communication
by an electronic communication service for purposes
of backup protection of such communication.” Id. §
2510(17).
The term “intercept,” as noted above, applies only to
electronic communications, not to electronic storage. See
id. § 2510(4). Applying this definition of intercept to the
above-quoted definition of electronic communication thus
means that the term intercept applies solely to the transfer
of electronic signals. The term does not apply to the
acquisition of electronic signals that are no longer being
transferred.
This gives rise to the contemporaneity requirement. Once
the transmission of the communication has ended, the
communication ceases to be a communication at all.
The former communication instead becomes part of
“electronic storage.” And at that point a person cannot
“intercept” the former communication because the term
intercept, as noted above, does not apply to electronic
storage. Interception must thus occur contemporaneously
with the transmission of the communication; it must, in
other words, catch the communication “in flight” before
the communication comes to rest and ceases to be a
communication. See Steve Jackson Games, 36 F.3d at 461–
62 (“Congress' use of the word ‘transfer’ in the definition
of ‘electronic communication’, and its omission in that
definition of the phrase ‘any electronic storage of such
communication’ [,] ... reflects that Congress did not intend
for ‘intercept’ to apply to ‘electronic communications'
when those communications are in ‘electronic storage’.”);
see also United States v. Szymuszkiewicz, 622 F.3d 701, 704
(7th Cir. 2010), as amended (Nov. 29, 2010) (concluding
that “catching the message ‘in flight’ ” constitutes an
“unlawful interception”).
This distinction between electronic communications and
electronic storage is not an accident of statutory
drafting. When Congress enacted the ECPA, it specifically
differentiated between communications in transit and
communications in storage. In particular, Title I of
the ECPA prohibits intentionally intercepting electronic
communications, whereas Title II of the ECPA prohibits
gaining unauthorized access to stored communications.
See Steve Jackson Games, 36 F.3d at 459. Title I,
moreover, imposes certain procedural requirements on
law-enforcement officers who wish to investigate crimes
by intercepting electronic communications, whereas Title
II implements different procedural requirements for lawenforcement officers who wish to investigate crimes by
accessing electronic storage. Id. at 463. Finally, Title I
limits the types of crimes that can be investigated through
the monitoring of electronic communications, but Title II
contains no such limit on the types of crimes that can be
investigated through access to stored communications. Id.
*6 These distinctions between Title I and Title II
of the ECPA show that Congress clearly meant to
differentiate between communications and storage. The
contemporaneity requirement thus plays a crucial role in
effectuating congressional intent. If the communication is
acquired contemporaneously with its transmission, then
an “intercept” has occurred and Title I applies; in contrast,
if the communication is not acquired contemporaneously
with its transmission, then “storage” has been accessed
and Title II applies. So even though the definition of
“intercept” does not explicitly require that an acquisition
be contemporaneous with transmission, see 18 U.S.C. §
2510(4), the contemporaneity requirement plays a key role
in effectuating the design of the ECPA.
All of the circuit courts that have considered the issue
have therefore followed Steve Jackson Games and have
concluded, like the Fifth Circuit, that the acquisition
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of a communication must be contemporaneous with its
transmission in order for an “intercept” to occur. See
Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 113
(3d Cir. 2003), as amended (Jan. 20, 2004) (“Nationwide
argues that it did not ‘intercept’ Fraser's e-mail within
the meaning of Title I because an ‘intercept’ can only
occur contemporaneously with transmission .... [W]e
agree with Nationwide.”); United States v. Steiger, 318
F.3d 1039, 1048–49 (11th Cir. 2003) (“The Fifth and
Ninth Circuits' reasoning is persuasive and we hold
that a contemporaneous interception—i.e., an acquisition
during ‘flight’—is required to implicate the Wiretap Act
with respect to electronic communications.”); Konop v.
Hawaiian Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002)
(“We therefore hold that for a website ... to be ‘intercepted’
in violation of the Wiretap Act, it must be acquired during
transmission, not while it is in electronic storage.”). But see
United States v. Councilman, 418 F.3d 67, 79–80 (1st Cir.
2005) (casting doubt on the contemporaneity requirement,
but ultimately concluding that the court “need not decide
that question” on the facts of the case before it).
District courts in the Sixth Circuit have also adopted
the contemporaneity requirement. See, e.g., Garback
v. Lossing, No. 09–CV–12407, 2010 WL 3733971,
at *2 (E.D. Mich. Sept. 20, 2010) (“[Courts] agree
that the term intercept encompasses only acquisitions
contemporaneous with transmission.... [T]he Court finds
this reasoning persuasive and adopts it here.” (emphasis
and internal quotation marks omitted)); Cardinal Health
414, Inc. v. Adams, 582 F.Supp.2d 967, 979–80
(M.D. Tenn. 2008) (“The Third, Fifth, Ninth, and
Eleventh Circuits all agree that, for a communication
to be ‘intercepted’ under the [Wiretap Act], that
communication must be acquired during the ‘flight’ of the
communication.... The reasoning from the multiple circuit
courts discussed above is sound....”).
[8] Our court has not yet decided precisely when an
“intercept” occurs under the Wiretap Act. In light of
the above discussion, however, we conclude that the
contemporaneity requirement is both (1) consistent with
the structure of the ECPA, and (2) consistent with the
interpretation of the Act adopted by every circuit to
have ruled on the issue. We therefore hold that, in
order for an “intercept” to occur for purposes of the
Wiretap Act, the electronic communication at issue must
be acquired contemporaneously with the transmission of
that communication.
2. Luis's complaint sufficiently alleges that Awareness
(via WebWatcher) acquires communications in a
manner that is contemporaneous with their transmission
For the reasons explained above, Luis's claim that
Awareness intercepted his electronic communications
requires him to establish that Awareness acquired
those communications contemporaneously with their
transmission. Luis's complaint must therefore allege
facts that, when accepted as true, give rise to a
reasonable inference that Awareness contemporaneously
acquired the communications. See Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009). Awareness argues that Luis's complaint
fails to do so because (1) the complaint contains no
specific allegations that WebWatcher contemporaneously
captures communications, and (2) even if there are such
allegations, those allegations are belied by an affidavit
submitted by Awareness's Chief Executive Officer (CEO).
Neither contention has merit.
a. Allegations of contemporaneous acquisition
*7
[9] In support of his illegal-intercept claim,
Luis attached to his complaint various marketing
materials that describe the features of a product called
WebWatcher. As noted above, we may appropriately take
account of such attachments. See Kreipke v. Wayne State
Univ., 807 F.3d 768, 774 (6th Cir. 2015) (“In reviewing a
motion to dismiss, the Court may consider the complaint
and any exhibits attached thereto....” (alteration and
internal quotation marks omitted)). Awareness, however,
argues that the marketing materials in this case cannot
be considered because they do not identify the source
of the product. As stated by Awareness, the complaint
contains “no allegation that they concern the product”
that Joseph allegedly installed on the computer used
by Catherine. It adds that “Luis uses [the] unverified
marketing materials to form the basis of his Wiretap Act
claims yet never makes the specific allegation that these
marketing materials have any connection to the product
used by Joseph C. Zang.” Awareness therefore asks us to
ignore these materials, maintaining that, in their absence,
Luis's complaint lacks enough factual matter to state a
valid claim.
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We are not persuaded. Luis's complaint (1) specifically
alleges that Awareness intercepted his communications
using an electronic device called WebWatcher, (2)
includes as attachments various marketing materials that
describe the features of an electronic device unequivocally
called WebWatcher, and (3) specifically refers to those
marketing materials when describing the way in which
Awareness's device operates. Thus, regardless of whether
the complaint includes a specific allegation that the
attached marketing materials refer to the same device
identified in the body of the complaint, the only
“reasonable inference” under these circumstances, see
Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, is that they do.
Awareness is of course correct that some possibility
exists that the marketing materials might refer to another
device carrying the trademark “WebWatcher” that is
unaffiliated with Awareness's own WebWatcher. This
argument, however, is far-fetched at best, and the more
“plausible inference,” see id. at 682, 129 S.Ct. 1937,
is that the materials do in fact apply to Awareness's
WebWatcher that Joseph allegedly used. These materials
thus help illuminate the way in which WebWatcher
allegedly intercepted Luis's communications.
In addition, Luis at this point in the litigation need push
his claim past only the “speculative level.” See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007) (“Factual allegations must be
enough to raise a right to relief above the speculative
level....”). Hence, even if there exists some minimal doubt
about the relationship between Awareness's WebWatcher
and the WebWatcher marketing materials attached to
the complaint, that doubt, standing alone, is not enough
to ignore the materials. This is especially true because
we must liberally construe Luis's pro se complaint, see
Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011),
with the result that we will grant Luis the benefit of any
doubt and conclude that, for the purposes of the current
appeal, the marketing materials do in fact apply to the
WebWatcher at issue.
We next consider whether the marketing materials
and Luis's accompanying allegations contain factual
content sufficient to support a reasonable inference
that Awareness, via WebWatcher, acquired Luis's
electronic communications contemporaneously with their
transmission. Two allegations in the complaint support
this inference. First, Luis alleges that the communications
at issue “were not originally stored on the computer's
hard drive.” The communications were instead acquired
by Awareness “as [they were] being written and
communicated between senders and recipients.” This
allegation directly supports the proposition that the
communications were still “in flight” for the purposes of
18 U.S.C. § 2511. See United States v. Szymuszkiewicz, 622
F.3d 701, 704 (7th Cir. 2010), as amended (Nov. 29, 2010)
(noting that “catching the message ‘in flight’ ” constitutes
an “unlawful interception” under § 2511); United States
v. Steiger, 318 F.3d 1039, 1048–49 (11th Cir. 2003)
(“[W]e hold that a contemporaneous interception—i.e.,
an acquisition during ‘flight’—is required to implicate the
Wiretap Act with respect to electronic communications.”).
*8
Second, Luis alleges that “WebWatcher
immediately and instantaneously rout[e]s the intercepted
communications to their [i.e., Awareness's] servers located
in California.” (Emphasis in original.) This allegation
directly supports an inference of contemporaneous
interception because, if WebWatcher does in fact
“immediately and instantaneously” copy and send
communications “as [they are] being written,” then the
acquisition of the communications likely occurs before the
communications have come to rest in electronic storage.
In turn, this allegation supports a reasonable inference
that the communications have in fact been intercepted for
the purposes of § 2511. See Steve Jackson Games, Inc.
v. U.S. Secret Serv., 36 F.3d 457, 461–62 (5th Cir. 1994)
(drawing a distinction between (1) acquiring an electronic
communication, which is an intercept, and (2) accessing
electronic storage, which is not).
The marketing materials attached to Luis's complaint
support this conclusion. As Luis notes, the materials state
that WebWatcher lets its users review a person's electronic
communications “in near real-time, even while the person
is still using the computer.” The materials further note 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.”
This near real-time monitoring is significant. If a
WebWatcher user can in fact review another person's
communications in near real time, then WebWatcher must
be acquiring the communications and transferring them
to Awareness's servers as soon as the communications
are sent. The program, in other words, does not wait for
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Luis v. Zang, --- F.3d ---- (2016)
the communications to be stored; instead, the program as
described captures and reroutes the communications so
that a WebWatcher user can review the communications
at nearly the same time as they are being transmitted.
In addition, the marketing materials state that “[e]ven
if a document is never even saved, WebWatcher still
records it.” This feature indicates that WebWatcher does
not wait for electronic communications to be saved
in a computer's electronic storage. Rather, the product
records the communications as they are being sent,
without regard for whether a copy is ever placed in
the storage of the affected computer. This aspect of
WebWacher's operations thus implies that the alleged
acquisition of Luis's communications indeed occurred
while the communications were still “in flight.” See
Szymuszkiewicz, 622 F.3d at 704. And this allegation,
in connection with the other allegations described
above, supports a reasonable inference that Luis's
communications were in fact “intercepted” under 18
U.S.C. § 2511.
Nor do other allegations in the complaint undermine
this conclusion. At oral argument, an issue was raised
about the effect of the complaint's later reference to
“oral” communications. Paragraph 98 of the complaint,
for instance, states that “Defendants, and each of them,”
violated the Wiretap Act because they “intentionally
intercepted ... oral communication[s],” or “intentionally
disclosed ... oral communication[s],” or “intentionally
used ... the contents of oral communication[s].” These
allegations regarding oral communications, the argument
goes, are inconsistent with Luis's basic claim that his
electronic communications—such as emails and instant
messages—were intercepted by Awareness, with the result
that Luis's claims purportedly do not state a plausible
basis for relief.
We respectfully disagree. Although Paragraph 98 does
refer to oral communications, that paragraph also
“restates and re-alleges the allegations set forth” in
the complaint's preceding paragraphs. And in those
paragraphs, Luis specifically alleges that the “listed
defendants ... violated the federal wiretap law ... when
electronic communications originating from Plaintiff's
computer located in Florida[ ] were intercepted in
transmission using WebWatcher.” (Emphasis added.)
Luis then adds that the electronic communications sent
between Luis and Catherine were intercepted when
WebWatcher sent those communications to Awareness's
servers in California. The complaint thus in fact alleges
that Luis's electronic communications were intercepted
by Awareness, with the result that the references to oral
communications later in the complaint do not defeat the
conclusion that Luis has stated an adequate claim under
18 U.S.C. § 2511.
b. The affidavit from Awareness's CEO
*9 Awareness resists the above conclusion that an
intercept occurred by relying on an affidavit submitted
by its CEO, Brad Miller. This affidavit was executed
in August 2012 and is attached to Awareness's motion
to dismiss. Miller states in the affidavit that, after
being installed on a computer, WebWatcher “records
various activities ... such as e-mails sent and received,
websites visited, keystrokes typed and transcripts of online
chats.” This recorded content is then “sent to an online
account,” from which a WebWatcher user may access
the material at a later date. According to Miller, a
WebWatcher user “cannot view communications at the
time a communication is transmitted.”
This purported lack of real-time monitoring is important,
Awareness maintains, because it allegedly shows that any
acquisition of communications is not contemporaneous
with the communications' transmission. Awareness thus
urges that Miller's affidavit be read as firmly establishing
that no contemporaneous acquisition—and hence no
intercept—occurred in this case.
This argument is unpersuasive for two reasons, the first
procedural and the second substantive. Procedurally,
Awareness is not entitled to rely on affidavits at this stage
of the case. A court evaluating a motion to dismiss may,
as noted above, consider “the complaint and any exhibits
attached thereto, public records, items appearing in the
record of the case and exhibits attached to defendant's
motion to dismiss so long as they are referred to in
the complaint and are central to the claims contained
therein.” Kreipke v. Wayne State Univ., 807 F.3d 768,
774 (6th Cir. 2015) (alterations and internal quotation
marks omitted). Miller's affidavit, although attached to
Awareness's motion to dismiss, is plainly not “referred to
in the complaint.” The affidavit therefore does not fall
within the categories of documents that may be considered
at this point in the litigation. See id.
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Rule 12(d) of the Federal Rules of Civil Procedure
confirms this conclusion. That rule provides that if, “on a
motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court,
the motion must be treated as one for summary judgment
under Rule 56.” The Miller affidavit is a “matter[ ] outside
the pleadings,” so the district court had the option of
either excluding the affidavit or converting Awareness's
motion to one for summary judgment. See Dayco Corp.
v. Goodyear Tire & Rubber Co., 523 F.2d 389, 392 (6th
Cir. 1975) (“It seems clear then, that if affidavits are filed
with the district court, the court must proceed under Rule
56 unless the court decides to exclude the affidavits.”).
Nothing in the record suggests that the district court
proceeded under Rule 56, so the Miller affidavit is not a
proper basis on which to resolve Awareness's motion to
dismiss. See id.; see also Tackett v. M & G Polymers, USA,
LLC, 561 F.3d 478, 488 (6th Cir. 2009) (“Because the
district court's ruling was not the functional equivalent of
a Rule 56 ruling, we decline the Defendants' invitation to
base our ruling on Rule 56. Therefore, we will not consider
matters extrinsic to the pleadings....”).
Moreover, even if we were to consider Miller's affidavit,
the substance of Awareness's argument is lacking.
The affidavit states that WebWatcher “records various
activities” on a computer and then sends those records to
servers maintained by Awareness. But the affidavit does
not specify how or when WebWatcher actually creates
the records of the affected computer's activities. The
affidavit therefore does not foreclose the possibility that
WebWatcher acquires electronic communications before
they come to rest in electronic storage. In other words,
the acquisition might still be contemporaneous with the
communications' transmissions.
*10 And even if Miller is correct that a WebWatcher
user “cannot view communications at the time a
communication is transmitted,” that assertion does not
necessarily undermine Luis's allegations. Luis claims that
Awareness itself illegally intercepted his communications,
and he specifically alleges that Awareness—through
WebWatcher—“immediately and instantaneously rout[e]s
the intercepted communications to their servers located
in California.” (Emphasis in original.) Hence, even
if a WebWatcher user cannot obtain real-time access
to the communications, the possibility remains that
Awareness itself acquires the communications while they
are still in transit. Any potential delay in access to the
communications for a WebWatcher user therefore does
not preclude a finding that Awareness itself acquires the
communications in a manner contemporaneous with their
transmission.
For the above reasons, neither Awareness's arguments
about the complaint's allegations nor its reliance on
its CEO's affidavit is persuasive. We therefore reject
Awareness's assertions with respect to Luis's claim under
§ 2511.
3. The district court's erroneous conclusion
In ruling on Awareness's motion to dismiss, the
district court largely agreed with the above analysis
and concluded that Luis's communications had been
intercepted. The court nonetheless granted Awareness's
motion to dismiss Luis's § 2511 claim on the ground that
“[Awareness] itself cannot be deemed to have ‘intercepted’
any of Plaintiff's communications.” Instead, the court
attributed liability for the intercept solely to Joseph, the
WebWatcher user.
Where the district court erred was in failing to
recognize that Luis alleges not only that Awareness
manufactures and sells WebWatcher, but that, once
installed on a computer, WebWatcher automatically
acquires and transmits communications to servers that
Awareness owns and maintains. The alleged intercept
of a communication thus occurs at the point where
WebWatcher—without any active input from the user
—captures the communication and reroutes it to
Awareness's own servers. Construing these allegations
liberally, as we must under Williams v. Curtin, 631
F.3d 380, 383 (6th Cir. 2011), the complaint supports
an inference that Awareness itself—not simply the
WebWatcher user—“acquires” the communications by
rerouting them to servers that it owns and controls. That,
in turn, suggests that Awareness itself is responsible for
the alleged intercept. See 18 U.S.C. § 2510 (defining
“intercept” as the “acquisition” of a communication).
Put differently, the complaint's focus on Awareness's
continued operation of the WebWatcher program—even
after that program is sold to a user—convinces us that
Luis has plausibly pleaded that Awareness intercepted his
communications.
And that gives rise to a plausible claim for relief. This
is because Awareness, as noted above, does not contest
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Luis v. Zang, --- F.3d ---- (2016)
the proposition that if Awareness itself is deemed to have
violated § 2511 by intercepting Luis's communications,
then Luis may sue Awareness under § 2520 to redress that
violation. For the reasons explained above, we conclude
that Luis has indeed alleged enough facts to reasonably
infer that Awareness intercepted his communications.
Luis may therefore proceed with his private cause of
action on the basis of Awareness's alleged violation of §
2511.
The dissent disputes our conclusion on the ground that
Luis “simply does not allege that Awareness was the
one intentionally doing the intercepting.” Dissenting Op.
––––. Its grammatical basis for this critique stems from
the statement in the complaint that “WebWatcher ...
routs the intercepted communications to their servers”
to be stored and analyzed for “their subscribers.” Id. at
––––. The dissent concludes that there is no plausible
connection between Awareness and the subject of the
pronoun “their.” See id.
To the contrary, paragraphs 12 and 96 of the
complaint specifically allege that Awareness (1)
manufactures WebWatcher, (2) conducts “all marketing”
for WebWatcher, and (3) is the “parent company”
of WebWatcher. Hence, when Luis alleges that
“WebWatcher ... routs the intercepted communications”
to “their” servers for “their” subscribers, the most
plausible inference is that the word “their” applies to both
WebWatcher and Awareness. Such a “plausible inference”
is all that is required to survive a motion to dismiss, see
Iqbal, 556 U.S. at 682, 129 S.Ct. 1937, so the dissent's
argument does not persuade us that Luis's complaint is
deficient.
C. Luis sufficiently alleged facts supporting a cause
of action against Awareness for manufacturing,
marketing, selling, and operating a wiretapping
device in violation of 18 U.S.C. § 2512(1)(b)
*11 [10] The second claim that Luis pursues on appeal is
that Awareness violated 18 U.S.C. § 2512(1)(b), and that
this violation gives rise to a private cause of action for a
party in Luis's circumstances. Section 2512(1)(b) reads as
follows:
Except as otherwise specifically
provided in this chapter, any
person who intentionally ... (b)
manufactures, assembles, possesses,
or sells 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 ... shall be fined
under this title or imprisoned not
more than five years, or both.
Luis's complaint plainly alleges facts that support a
reasonable inference that Awareness violated this section.
First, Luis claims that Awareness is the manufacturer
of WebWatcher, a device specifically designed to
surreptitiously “intercept[ ] communications” such as
those that were electronically transmitted between Luis
and Catherine. Second, Luis claims that Awareness
markets WebWatcher as a means for one spouse to
illegally monitor the communications of another spouse in
a way that goes “far beyond” any legitimate purpose that
WebWatcher might have. These allegations easily support
an inference that Awareness manufactures a device
“knowing or having reason to know” that the device is
“primarily useful for ... the surreptitious interception of ...
electronic communications.” The complaint therefore
adequately alleges a violation of 18 U.S.C. § 2512(1)(b).
This leads to the question whether Luis can sue for that
violation. Section 2512(1)(b) itself does not allow for such
a suit because it provides only that the violator will be
“fined ... or imprisoned.” Luis's private cause of action for
such a violation thus depends on the proper interpretation
of 18 U.S.C. § 2520.
Section 2520, as noted previously, states that “any
person whose wire, oral, or electronic communication is
intercepted, disclosed, or intentionally used in violation of
[the Wiretap Act] may in a civil action recover from the
person or entity ... which engaged in that violation such
relief as may be appropriate.” For the reasons explained
earlier, Luis has adequately alleged facts supporting
an inference that he is a “person whose ... electronic
communication [was] intercepted ... in violation” of the
Wiretap Act. See Part II.B. above. Luis is accordingly
entitled to recover from the “person or entity ... which
engaged in that violation.” The sole question in assessing
Luis's § 2512(1)(b) claim is therefore whether Awareness's
alleged manufacture, marketing, sale, and operation of
WebWatcher caused it to be “engaged in that violation”
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of the Wiretap Act when Luis's communications were
intercepted.
Awareness argues that manufacturing an electronic device
does not amount to such engagement within the meaning
of § 2520. It observes that § 2520 provides recovery
for a plaintiff whose communication is “intercepted,
disclosed, or intentionally used,” which it contends should
limit liability to those defendants who actually initiate
the interception, disclosure, or intentional use at issue.
Because manufacturing an electronic device is different
than “intercepting, disclosing, or intentionally using” a
communication, Awareness argues that § 2520 provides
no private cause of action against a manufacturer that
violates § 2512(1)(b).
*12 Luis counters that Awareness's interpretation
ignores the plain language of the statute. If Congress had
meant to restrict liability to only those persons or entities
who make the specific decision to “intercept, disclose,
or intentionally use” a communication, then Congress
would have used those terms in defining the class of
defendants subject to suit under § 2520. But as Luis
notes, Congress eschewed that route. Congress instead
chose to impose liability on any person or entity that
“engaged in” the interception, disclosure, or intentional
use of the communication in question. Stated differently,
Luis contends that Congress's definition of the class of
defendants as those who “engage[ ] in” certain Wiretap
Act violations is broad enough to include those entities—
such as Awareness—that allegedly violate § 2512(1)(b) by
manufacturing and remaining involved in the operation of
a device that is primarily used to commit such violations.
Courts that have previously addressed these arguments
have come to inconsistent conclusions. On the one hand, a
number of district courts have adopted a broad reading of
§ 2520 by concluding that the section gives rise to a private
cause of action against anyone who violates the Wiretap
Act, regardless of whether that violation was specifically
an intercept, disclosure, or use of a communication.
See, e.g., DIRECTV, Inc. v. Dougherty, No. 1:02–CV–
05576, 2003 WL 24046760, at *2–3 (D.N.J. Oct. 8, 2003)
(concluding that “[a]nyone who violates a provision of
the ECPA is a potential defendant,” and describing this
conclusion as “the majority position” and “the better
view”); see also DIRECTV, Inc. v. Kitzmiller, No. CIV.A.
03–3296, 2004 WL 692230, at *4 (E.D. Pa. Mar. 31,
2004) (agreeing with Dougherty that “anyone who violates
a provision of the ECPA is a potential defendant”
and stating that “this newly-developed majority view is
the better approach”). These courts, for example, have
imposed civil liability for simply possessing a wiretapping
device in violation of § 2512(1)(b), even though such
possession, standing alone, does not involve the intercept,
disclosure, or use of a communication. See Dougherty,
2003 WL 24046760, at *2 (“[T]he recently developed
majority view is that § 2520(a) does allow for the recovery
of damages against one who possesses an intercepting
device.”).
On the other hand, two of our sister circuits have disagreed
with the conclusion reached by cases such as Dougherty
and Kitzmiller. These circuits hold that § 2520 provides
a cause of action against only those defendants whose
violation of the Wiretap Act consists of an intercept,
disclosure, or intentional use of a communication. Other
violations, such as the simple possession of a wiretapping
device, do not give rise to civil liability. See DirecTV, Inc.
v. Treworgy, 373 F.3d 1124, 1127 (11th Cir. 2004) (“The
phrase ‘which engaged in that violation’ makes apparent
the intent of Congress to limit liability to a certain class
of defendants. Congress chose to confine private civil
actions to defendants who had ‘intercepted, disclosed,
or intentionally used a communication in violation of ...
[the Wiretap Act.]’ ” (emphasis in original) (citations
and some alterations omitted)); see also DIRECTV Inc.
v. Robson, 420 F.3d 532, 539 & n.31 (5th Cir. 2005)
(collecting cases that have found “no merit in [the]
assertion that § 2520 expressly provides a private cause of
action for [all] violations of the criminal proscriptions of §
2512” (alterations, citation, and internal quotation marks
omitted)).
These conflicting arguments have generated divergent
results in the context of private suits alleging that a
defendant violated § 2512(1)(b) simply by possessing a
device that is primarily used for surreptitious wiretapping.
Those courts that accept a broad reading of the “engaged
in” language hold that possession of such a device, without
more, is indeed enough to support a private cause of
action under § 2520. See Dougherty, 2003 WL 24046760,
at *2 (collecting cases in which courts have found “that §
2520(a) does subject possessors of intercepting devices to
civil liability”).
*13 In contrast, those courts that adopt a more limited
reading of the “engaged in” language hold that simple
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Luis v. Zang, --- F.3d ---- (2016)
possession is not enough to support a private cause
of action for a violation of § 2512(1)(b). See, e.g.,
Treworgy, 373 F.3d at 1129 (“Because the language of
section 2520(a) does not create a private right of action
against a person who possesses a device in violation of
section 2512(1)(b), we cannot create one.”); Directv, Inc.
v. Amato, 269 F.Supp.2d 688, 691 (E.D. Va. 2003) (“[T]he
mere possession of such a device, as banned by § 2512,
creates ... no justification for private recovery.” (emphasis
in original)). Possession of a wiretapping device, in other
words, can constitute a violation of the Wiretap Act, see
18 U.S.C. § 2512(1)(b), but this violation does not give
rise to a private cause of action because “possession” of
such a device is distinct from “intercepting, disclosing, or
intentionally using” a communication.
We conclude that the Eleventh Circuit and those other
courts that have adopted a narrow reading of § 2520 have
the better end of this debate. This is because the phrase
“engaged in that violation” plainly refers back to the
earlier clause defining the “violation” as an “intercept[ ],
disclos[ure], or intentional[ ] use[ ].” See 18 U.S.C. § 2520.
The earlier clause thus defines the scope of the phrase
“engaged in that violation,” with the implication that
a court should not read the latter phrase as imposing
liability for violations such as simple possession of a
wiretapping device. See Treworgy, 373 F.3d at 1127 (“As
explained by one district court, as a matter of grammar
and sentence structure, the phrase ‘that violation’ refers
to the interception, disclosure, or intentional use of
communications mentioned earlier in the sentence, and
not to the possession of prohibited devices.” (citation,
emphasis, and internal quotation marks omitted)).
Our narrow reading of § 2520, however, does not doom
Luis's claim. This is because the facts of the current case
are materially different from the facts of cases such as
Treworgy. In the latter cases, the courts were focused
on whether a defendant's possession of a wiretapping
device, without more, was sufficient to support a private
cause of action. See id. at 1125 (“The issue presented
by this interlocutory appeal [is] ... whether 18 U.S.C.
section 2520(a), as amended in 1986, provides a private
right of action against persons who possess devices used
to intercept satellite transmissions in violation of 18
U.S.C. section 2512(1)(b), a criminal offense.”); see also
DIRECTV Inc. v. Robson, 420 F.3d 532, 539 & n.31 (5th
Cir. 2005) (citing Treworgy for the proposition that “the
civil cause of action embodied in § 2520 does not cover ...
possessory violations”).
The present case, in contrast, involves much more
than simple possession. Instead, as described above,
Awareness allegedly manufactured, marketed, and sold
WebWatcher with knowledge that it would be primarily
used to illegally intercept electronic communications.
It then remained actively involved in the operation
of WebWatcher by maintaining the servers on which
the intercepted communications were later stored for
WebWatcher's users. Awareness thus allegedly took a
much more active role in causing the Wiretap Act
violation in this case than the defendants in other cases
who did nothing more than possess a wiretapping device
in contravention of § 2512(1)(b).
[11] We accordingly emphasize that our narrow holding
is consistent with the conclusion that § 2520 does not
support a cause of action against those who simply possess
a wiretapping device. Instead, we today hold that a
defendant such as Awareness—which allegedly violates
§ 2512(1)(b) by manufacturing, marketing, and selling a
violative device—is subject to a private suit under § 2520
only when that defendant also plays an active role in
the use of the relevant device to intercept, disclose, or
intentionally use a plaintiff's electronic communications.
*14 So even though Awareness itself did not initiate
the specific action that “intercepted, disclosed, or
intentionally used” Luis's communications in violation
of the Wiretap Act, it is alleged to have actively
manufactured, marketed, sold, and operated the device
that was used to do so. This is enough to establish that
Awareness was “engaged in” a violation of the Wiretap
Act in a way that defendants such as those in Treworgy
and Amato—who simply possessed wiretapping devices
—were not. See DirecTV, Inc. v. Tasche, 316 F.Supp.2d
783, 790 (E.D. Wis. 2004) (“Though Tasche may not
have actually done the intercepting himself, it would be
a stretch to find that he was not ‘engaged in’ that act.
Those who sell devices that are designed to steal DirecTV's
satellite transmissions to those who are intent on stealing
DirecTV's satellite transmissions are, in my view, ‘engaged
in’ intercepting such transmissions.”).
The dissent disputes the outcome that we reach on this
issue, contending that civil liability under §§ 2512(1)(b)
and 2520 should extend only to those persons or entities
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Luis v. Zang, --- F.3d ---- (2016)
who themselves intercept, disclose, or use a would-be
plaintiff's electronic communication. Dissenting Op. ––––.
As support, the dissent relies on Peavy v. WFAA–TV,
Inc., 221 F.3d 158 (5th Cir. 2000), and Flowers v. Tandy
Corp., 773 F.2d 585 (4th Cir. 1985), which purportedly
are consistent with the dissent's narrow conception of
§§ 2512(1)(b) and 2520. We find both cases readily
distinguishable.
In Peavy, the plaintiffs sought to pursue a civil action
for an alleged violation of § 2511(1)(a). 221 F.3d at 167.
That section provides in pertinent part that a Wiretap Act
violation occurs if a person “procures any other person to
intercept ... any wire, oral, or electronic communication.”
18 U.S.C. § 2511(1)(a). The plaintiffs thus argued that
the defendants were liable in a civil action brought under
§ 2520 because the defendants had “procured” others
to intercept the plaintiffs' communications. 221 F.3d at
167-68.
On appeal, the Fifth Circuit considered whether § 2520
was broad enough to encompass defendants accused of
violating § 2511(1)(a) via procurement. Id. The court
observed that, prior to 1986, § 2520 read as follows:
Any person whose wire or
oral communication is intercepted,
disclosed, or used in violation of
this chapter shall (1) have a civil
cause of action against any person
who intercepts, discloses, or uses,
or procures any other person to
intercept, disclose, or use such
communications, and (2) be entitled
to recover from any such person
[damages, attorney's fees, and costs].
18 U.S.C. § 2520 (1970) (emphasis added). In 1986,
however, Congress amended § 2520. Hence, both at the
time that Peavy was decided and as currently written, §
2520 reads in relevant part as follows:
[A]ny
person
whose
wire,
oral, or electronic communication
is
intercepted,
disclosed,
or
intentionally used in violation of this
chapter may in a civil action recover
from the person or entity ... which
engaged in that violation such relief
as may be appropriate.
18 U.S.C. § 2520 (2012).
The Fifth Circuit found the difference between the two
versions of the statute significant. It noted that the
1986 amendment specifically deleted the reference to
“procuring” the intercept of an electronic communication,
with the implication that Congress—by making that
deletion—intended to foreclose civil liability for such
conduct. 221 F.3d at 169 (reading the 1986 amendment as
a sign that Congress meant “to take away a civil action for
procurement”).
The civil action in the current case rests on a different
statutory footing. Luis argues—and we conclude—that
his complaint adequately alleges that Awareness “engaged
in” a violation of the Wiretap Act. As opposed to the
“procurement” language at issue in Peavy, the “engaged
in” language was not deleted from the earlier version of §
2520; instead, the “engaged in” language was specifically
added when Congress enacted the 1986 amendment. The
current case is thus easily distinguishable from Peavy
because there exists no implication that Congress intended
to foreclose claims such as Luis's by altering the language
of § 2520.
*15 Flowers is likewise distinguishable. In that case,
as in Peavy, the court considered the pre-1986 version
of § 2520. See 773 F.2d at 587 & n.2. That version
of the statute, as noted above, explicitly limited the
defendants that could be held liable in a civil action to
those persons or entities who themselves “intercept[ed],
disclose[d], or use[d]” electronic communications, “or
procure[ed] any other person to intercept, disclose, or
use such communications.” 18 U.S.C. § 2520 (1970).
The current version of the statute, however, contains no
such explicit delineation of the activities that give rise to
civil liability. See 18 U.S.C. § 2520 (2012). As a result,
Luis's claim in this case rests on a much firmer statutory
foundation than the claim that was at issue in Flowers.
Moreover, the relevant claim in Flowers was an assertion
that the defendant had sold a device that was later used by
the purchaser to violate the Wiretap Act. 773 F.2d at 589.
The Fourth Circuit ultimately concluded that this claim
failed because the sale of the device, without additional
conduct by the seller and without its knowledge of the
device's intended use, did not give rise to liability. Id. at 590
(finding no liability for “the mere selling” of the device);
see also id. at 591 (concluding that the seller could not be
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Luis v. Zang, --- F.3d ---- (2016)
held liable when it lacked “any knowledge of [the] intended
use of the device”).
Luis's claim, in contrast, is not limited to “the mere selling”
of the device at issue. Rather, Luis claims that Awareness
manufactured, marketed, sold, and actively operated the
violative device, all while knowing that its device was to
be used primarily for the surreptitious interception of
electronic communications. Awareness's alleged conduct
in this case, in other words, is far more culpable than the
defendant's alleged conduct in Flowers, with the result that
Flowers sheds little light on whether Luis has stated a claim
under §§ 2512(1)(b) and 2520.
The dissent next asserts that our analysis “confuses
Awareness's alleged violations of § 2512 with violations
of § 2511.” Dissenting Op. ––––. We respectfully disagree
because Luis's claims, as explained below, are analytically
distinct.
First, Luis alleges that Awareness violated § 2511
when Awareness itself intercepted his electronic
communications in violation of the Wiretap Act. See
Part II.B. above. But regardless of the outcome of the §
2511 claim, Luis has also alleged a violation of § 2512.
He asserts that, by manufacturing, marketing, selling,
and actively operating the wiretapping device at issue,
Awareness (1) violated § 2512, and (2) “engaged in”
the illegal intercept of Luis's communications. Hence,
even if a jury ultimately concludes that only Zang (and
not Awareness) intercepted Luis's communications in
violation of § 2511, Awareness might still be liable
because it “engaged in” that violation (see § 2520) by
manufacturing, marketing, selling, and actively operating
the device that was used by Zang to conduct the intercept.
Luis's two claims, in other words, do not rise and fall
together.
Finally, the dissent asserts that our reading of the
statute interjects unwarranted “indeterminacy” into the
evaluation of private suits for claimed violations of §
2512. Dissenting Op. ––––. We again respectfully disagree.
The essence of our holding is that a defendant who
manufactures, markets, and sells a wiretapping device
in violation of 18 U.S.C. § 2512 is potentially liable
in a private suit brought under § 2520 when that
defendant also plays an active role in the operation of
the device to “intercept, disclose, or intentionally use”
a plaintiff's electronic communications. Put differently,
the active operation of the device establishes that a
defendant who has manufactured, marketed, and sold
the device at issue (in violation of § 2512) has in fact
participated in the intercept, disclosure, or use of a
plaintiff's communications to such a degree that the
defendant has “engaged in” the underlying violation.
Manufacturing, marketing, and selling the device is thus
a necessary prerequisite for a civil suit for a violation of
§ 2512; and, when that prerequisite is combined with the
defendant's active operation of the device at issue, the
defendant's conduct suffices to satisfy the “engaged in”
standard of § 2520.
*16 As the dissent observes, Dissenting Op. ––––, this
standard may in some cases raise factual questions about
whether a defendant's role in operating a wiretapping
device is extensive enough to constitute “engaging in”
the underlying violation of the Wiretap Act. But such
disputes are no different than any case in which a court
or jury is called on to decide whether certain conduct falls
within a statutory definition. We accordingly doubt that
the district courts will have any difficulty when applying
this standard. For all of these reasons, we reverse the
judgment of the district court with respect to the dismissal
of Luis's § 2512 claim.
D. Luis sufficiently alleged facts supporting his causes of
action under the Ohio Wiretap Act and Ohio common law
In addition to his federal claims under the Wiretap Act,
Luis's complaint contains a number of claims brought
under Ohio state law. The district court dismissed all of his
state-law claims. On appeal, Luis raises only two of them:
(1) the alleged violations of the Ohio Wiretap Act, and (2)
the tortious invasion of his privacy.
1. Luis sufficiently pleaded a cause of action
under Ohio Rev. Code Ann. § 2933.52
Luis argues that his complaint states a claim under two
different subsection of the Ohio Wiretap Act: § 2933.52(A)
(1) and § 2933.52(A)(3). Subsection (A)(1) provides that
“[n]o person purposely shall ... intercept a wire, oral, or
electronic communication,” and subsection (A)(3) states
that no person shall “[u]se ... the contents of a wire, oral,
or electronic communication, knowing or having reason
to know that the contents were obtained ... in violation of
[the Ohio Wiretap Act.]”
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Luis v. Zang, --- F.3d ---- (2016)
a. Purposeful intercept under § 2933.52(A)(1)
[12] As Luis notes, § 2933.52(A)(1) of the Ohio Wiretap
Act closely parallels the language of 18 U.S.C. § 2511.
Compare 18 U.S.C. § 2511(1)(a) (imposing a penalty
on persons who “intentionally intercept [ ] ... any
wire, oral, or electronic communication”), with Ohio
Rev. Code Ann. § 2933.52(A)(1) (providing that no
person shall “purposely ... intercept a wire, oral, or
electronic communication”). The Acts also use nearly
identical definitions of the terms “intercept” and “device.”
Compare 18 U.S.C. § 2510(4)-(5) with Ohio Rev. Code
Ann. § 2933.51(C)-(D). Thus, for the same reasons that
Luis's allegations state a claim for relief under 18 U.S.C.
§ 2511, see Part II.B. above, Luis's allegations state a
claim for relief under § 2933.52(A)(1) of the Ohio Wiretap
Act. Cf. Nix v. O'Malley, 160 F.3d 343, 348 (6th Cir.
1998) (construing § 2933.52(A)(2) and (A)(3) of the Ohio
Wiretap Act as “mirroring” or as being “equivalent to”
the federal Wiretap Act).
Consistent with its rulings on Luis's federal claims, the
district court held that the Ohio Wiretap Act “does
not contemplate imposing civil liability on software
manufacturers and distributers for the activities of third
parties.” The court thus concluded that Awareness could
not be held liable for Joseph's actions in installing and
using WebWatcher.
This reasoning is erroneous because Luis does not
allege that Awareness is liable solely on the basis of
Joseph's actions. Luis instead alleges that Awareness itself
violated the Act in question. In particular, Luis's instant
messages, emails, and other electronic communications
were allegedly forwarded to Awareness's own servers
in California. The messages were then allegedly (1)
stored for later disclosure to Joseph, and (2) subjected
to Awareness's “Alert Word” filtering system. Based
on these allegations, Awareness itself “acquir [ed] ...
the contents of ... [Luis's] electronic communications”
and thus “intercepted” the communications within the
meaning of the Ohio Wiretap Act. See Ohio Rev. Code
Ann. § 2933.51(C) (defining “intercept” as “the aural
or other acquisition of the contents of any wire, oral,
or electronic communication”). Luis's complaint could
admittedly be clearer on this point, but we must construe
Luis's pro se pleading liberally. See Williams v. Curtin, 631
F.3d 380, 383 (6th Cir. 2011). We thus conclude that the
district court erred and that Luis has adequately stated
a claim for relief on the ground that Awareness itself
allegedly intercepted Luis's communications in violation
of § 2933.52(A)(1).
b. Unauthorized use of the contents of an
electronic communication under § 2933.52(A)(3)
*17 [13] Luis's second theory of liability under the
Ohio Wiretap Act is that Awareness illegally “used”
the contents of his electronic communications. This
theory has three requirements. Luis must first allege that
Awareness “used” an intercepted communication as that
term has been defined for the purposes of § 2933.52(A)
(3). He must next allege that the interception that captured
the communication was itself a violation of the Ohio
Wiretap Act. See Nix, 160 F.3d at 348. Finally, Luis
must allege that Awareness knew or had reason to know
of the violation at the time that it used the intercepted
communication. See id.
Luis alleges that Awareness “used” his communications
when Awareness stored them on its servers in California
and then disclosed them to Joseph for his later review.
Ohio has treated the disclosure of an intercepted
communication as conduct that satisfies the “use”
requirement for the purposes of the Ohio Wiretap Act.
See Nix, 160 F.3d at 348 (“In 1996, Ohio replaced
section 2933.52(A)(3)'s prohibition on ‘disclosure’ with a
prohibition on ‘use,’ but ... the district court and all parties
have consistently interpreted § 2933.52(A)(3) to prohibit
both use and disclosure....”). In addition, Awareness does
not challenge this interpretation of “use.” Luis has thus
satisfied the first requirement for pleading a cause of
action under § 2933.52(A)(3).
Next, Luis sufficiently alleged that Awareness itself
violated the Ohio Wiretap Act by intercepting his
communications within the meaning of § 2933.52(A)
(1). See Part II.D.1.a. above. Moreover, even if Luis's
theory of direct liability for Awareness ultimately
proves untenable, he has alleged that Joseph also
violated § 2933.52(A)(1) by intercepting Luis's electronic
communications. Luis has therefore satisfied the second
requirement of § 2933.52(A)(3) by alleging that his
electronic communications were indeed intercepted in
violation of the Ohio Wiretap Act.
[14] Finally, Luis's complaint alleges that Awareness
markets WebWatcher with the expectation that
purchasers will use the program for surreptitiously
monitoring the communications of other persons. He
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Luis v. Zang, --- F.3d ---- (2016)
claims in particular that Awareness “intentionally targets
[its] product at spouses in [its] marketing campaigns—
enticing them with the lure of finding out everything
that goes on in the targeted computer's private
accounts.” (Emphasis in original.) This marketing, Luis
alleges, goes “far beyond” any legal uses that the product
might have and is reminiscent of advertising strategies that
the Federal Trade Commission has previously condemned
as encouraging illegal spying.
Assuming that these allegations accurately describe
Awareness's marketing efforts—as we must at this point
in the litigation, see Boland v. Holder, 682 F.3d 531,
534 (6th Cir. 2012) (“[W]e accept all facts alleged in
the complaint as true.”)—Awareness would have had
a “reason to know” that any communications that it
obtained through WebWatcher were obtained in violation
of the Ohio Wiretap Act. Luis has therefore adequately
pleaded the third requirement to establish liability under §
2933.52(A)(3). We accordingly reverse the district court's
dismissal of this claim.
2. Luis sufficiently pleaded invasion
of privacy under Ohio common law
[15] [16] Luis's final argument is that he has sufficiently
pleaded a claim for common-law invasion of privacy. The
parties agree that Ohio recognizes the “intrusion” variant
of this tort. Prevailing on an intrusion claim requires the
plaintiff to show that the defendant caused a “wrongful
intrusion into one's private activities in such a manner as
to outrage or cause mental suffering, shame or humiliation
to a person of ordinary sensibilities.” Welling v. Weinfeld,
113 Ohio St.3d 464, 866 N.E.2d 1051, 1053 (2007) (quoting
Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340, 343
(1956)). The plaintiff must have a “reasonable expectation
of privacy” in the area or subject matter in which the
alleged intrusion occurs. Retuerto v. Berea Moving Storage
& Logistics, 38 N.E.3d 392, 406 (Ohio Ct. App. 2015)
(internal quotation marks omitted). This expectation
depends on the “totality of the circumstances.” Lazette v.
Kulmatycki, 949 F.Supp.2d 748, 761 (N.D. Ohio 2013).
*18 [17] In the present case, Luis alleges that he began
exchanging electronic communications with Catherine
in February 2009. Nothing in the complaint suggests
that Luis or Catherine expected other people to monitor
these communications, nor does Awareness contend that
any other person had a legitimate reason to access
these exchanges. In addition, the complaint specifically
alleges that Luis's “conversations and communications
were private,” and that the installation of WebWatcher
allowed Joseph and the other defendants to “intercept
and record conversations and actions to which they would
not otherwise be privy.” These allegations sufficiently
establish that Luis had a reasonable expectation of privacy
in his exchanges of electronic communications with
Catherine. Cf. Lazette, 949 F.Supp.2d at 761 (rejecting a
motion to dismiss an intrusion claim in part because the
emails at issue “were highly personal and private”).
Luis next alleges that Awareness carried out the intrusion
by intercepting his communications in violation of the
federal and state Wiretap Acts. See Part II.D.1.a. above.
Awareness's conduct was therefore “wrongful” for the
purposes of Luis's intrusion claim. See LeCrone v. Ohio
Bell Tel. Co., 120 Ohio App. 129, 201 N.E.2d 533, 536
(1963) (observing that the kind of conduct giving rise
to an intrusion claim “generally would be criminal” or
“a violation of public utility law”); see also Retuerto,
38 N.E.3d at 407 (noting that an example of conduct
constituting intrusion “would be wiretapping”).
Finally, Luis alleges that learning of Awareness's conduct
caused him “surprise and dismay.” He adds that, after
intercepting his communications, Awareness disclosed
“private and potentially embarrassing facts” to third
parties such as Joseph. These allegations support a
reasonable inference that Awareness's alleged intrusion
caused “mental suffering, shame or humiliation.” See
Welling, 866 N.E.2d at 1053. Luis therefore adequately
pleaded the last remaining aspect of his commonlaw intrusion claim. Cf. LeCrone, 201 N.E.2d at 536
(“As a general proposition, eavesdropping on phone
conversations of another by unauthorized mechanical
means, or a so[-]called ‘tap,’ is the kind of act or conduct
that fits the definition of an intrusion or prying into
another's private affairs.”).
The district court reached the opposite conclusion. It held
that Luis had failed to state a claim against Awareness
because (1) Luis's factual allegations were too sparse, and
(2) any liability should be attributed to Joseph rather than
to Awareness.
We find the district court's analysis unconvincing. First,
as described above, Luis alleged factual content related
to each element of his intrusion claim. The complaint
admittedly could contain additional details, and Luis's
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Luis v. Zang, --- F.3d ---- (2016)
intrusion claim against Awareness may yet fail, but at this
point Luis need nudge his claim past only the “speculative
level.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also
Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426,
430 (6th Cir. 2008) (“Twombly does not require heightened
fact pleading....” (internal quotation marks omitted)).
Luis, in other words, has provided enough information
for a factfinder to reasonably infer that Awareness was
responsible for each element of an intrusion claim. Luis's
complaint is therefore adequate. See Kreipke v. Wayne
State Univ., 807 F.3d 768, 774 (6th Cir. 2015) (noting that
a complaint should “contain either direct or inferential
allegations respecting all material elements necessary for
recovery under a viable legal theory” (internal quotation
marks omitted)).
Second, Luis's intrusion claim does not depend on
attributing the actions of Joseph to Awareness. Rather,
as previously explained, Luis alleges that Awareness itself
violated the federal and state Wiretap Acts by acquiring
Luis's communications. Awareness is therefore unable to
escape Luis's claims simply by arguing that a different
party was actually more culpable. We accordingly
conclude that Luis has adequately stated an intrusion
claim against Awareness.
VI. CONCLUSION
*19 Our holdings should not be construed as
foreshadowing the ultimate outcome of Luis's claims.
Awareness may yet prevail on summary judgment or at
trial. For now, however, Luis's claims are sufficient to
survive Awareness's motion to dismiss. The judgment of
the district court is therefore REVERSED and the case is
REMANDED for further proceedings consistent with this
opinion.
ALICE M. BATCHELDER, Circuit Judge, dissenting.
I agree that the complaint sufficiently alleges that
WebWatcher “intercepts” communications within the
meaning of the Wiretap Act, but my agreement with the
majority ends there. Regarding his § 2511 claim, Luis's
complaint does not allege that Awareness itself intercepted
Luis's communications. As for § 2512, even assuming that
Luis alleges a violation of that section, the Wiretap Act
does not provide a private cause of action. I would affirm.
Luis's § 2511 argument on appeal is admittedly
compelling: Awareness, by operating the online software
central to WebWatcher's functionality, bears the same
level of culpability as its customer for the software's illegal
interceptions. But this theory of the case 1 is not alleged
in the complaint. No matter how liberally we read Luis's
complaint, he simply does not allege that Awareness was
the one intentionally doing the intercepting.
The fact is that the complaint never names Awareness
in the context of WebWatcher's operation. Awareness is
named only twice. Initially, in paragraph 12, Awareness
is identified as one of the defendants; that paragraph
merely states that the company “is the maker of
WebWatcher computer monitoring software ... and is
responsible for all marketing of this product.” The only
other mention is in paragraph 96 of the complaint's
substantive allegations, which focuses on Awareness's
marketing and design of WebWatcher. 2 The allegations
include intentionally marketing WebWatcher to spouses,
knowing that WebWatcher could be used surreptitiously,
and knowing that it should have been modified to prevent
any illegal use. The bulk of Luis's factual allegations
describe the conduct of other defendants now dismissed
from the suit.
The majority accepts Luis's argument on appeal that
the complaint directly implicates Awareness in paragraph
77. But this reading is much more than just charitable
—it grasps at straws. In describing how WebWatcher
operates, Paragraph 77 uses only a possessive pronoun
that lacks any antecedent: “WebWatcher immediately and
instantaneously routs the intercepted communications to
their servers located in California to be stored for their
subscribers to later retrieve at their leisure.” Awareness
is neither named nor the subject of the action. This
paragraph, located amidst Luis's allegations against the
other defendants, does not give rise to the plausible
inference that Awareness intentionally intercepted Luis's
communications. See Ashcroft v. Iqbal, 556 U.S. 662, 682–
83, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
*20 Even setting aside Twombly and Iqbal's pleading
standards (as the majority does), the main purpose of
a complaint has always been “to ‘give the defendant
fair notice of what the claim is and the grounds upon
which it rests.’ ” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)
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Luis v. Zang, --- F.3d ---- (2016)
(quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957)). Luis's complaint fails even this lenient
standard. It does not put Awareness on notice that it—the
manufacturer and seller—could be liable for anonymous
customer Joseph Zang's misuse of the WebWatcher. Luis's
novel theory of liability does not appear even to have been
tried, much less to have been successful, in any previous
case. Neither Awareness nor the district court should have
been expected to divine it from Luis's allegations against
the other defendants. I would affirm the district court's
dismissal of Luis's § 2511 claim against Awareness. I would
affirm the dismissal of Luis's state-law claims for the same
reason. See Nix v. O'Malley, 160 F.3d 343, 348 (6th Cir.
1998) (interpreting the Ohio Wiretap Act identically to the
federal Wiretap Act).
As for Luis's § 2512 claim against Awareness, I am
uncertain whether the complaint's factual allegations
and the attached marketing materials plausibly indicate
that the WebWatcher is “primarily useful for the
purpose of the surreptitious interception of ... electronic
communications.” See 18 U.S.C. § 2512(1)(b). A
monitoring device like the WebWatcher is plainly useful
for purposes wholly consistent with full disclosure,
including an employer's monitoring of its employees or
parental monitoring of children. But even accepting that
Luis has alleged a violation of § 2512, the Wiretap Act
lacks a private right of action to remedy that violation.
The majority's contrary conclusion distorts the statutory
text and lacks any standard to guide future litigants.
The Wiretap Act, a criminal statute, contains a private
right of action to remedy certain violations. The provision
creating this right of action reads as follows:
[A]ny
person
whose
wire,
oral, or electronic communication
is
intercepted,
disclosed,
or
intentionally used in violation of this
chapter may in a civil action recover
from the person or entity ... which
engaged in that violation such relief
as may be appropriate.
§ 2520(a). The series of verbs “intercepted, disclosed, or ...
used” comes from § 2511(1)(a)–(e). There is no dispute that
a plaintiff must be the victim of a § 2511 violation in order
to sue under § 2520(a).
But who may be liable under this provision? As the
majority correctly notes, the phrase “engaged in that
violation” narrows the category of possible defendants.
“[T]hat violation” plainly refers back to the earlier verb
series; a proper defendant is one who “engaged in” an
illegal “intercept[ion], disclos [ure], or ... use[ ].” Every
circuit court that has addressed the issue has so held.
See DirecTV, Inc. v. Treworgy, 373 F.3d 1124, 1127
(11th Cir. 2004) (holding that § 2520(a) does not create
a private right of action for possession of a device in
violation of § 2512(1)(b), because the plain language limits
the class of defendants to individuals or entities that
committed the violation suffered by the plaintiff); Peavy
v. WFAA–TV,, Inc., 221 F.3d 158, 169 (5th Cir. 2000)
(holding that § 2520(a) provides a right of action only
against a defendant who “intercepted, disclosed, or used”
the covered communications); see also DirecTV Inc. v.
Robson, 420 F.3d 532, 538–39 (5th Cir. 2005) (noting that
§ 2520(a) does not provide a private right of action “for
merely possessing or purchasing” a device in violation of
§ 2512(1)(b)); DirecTV, Inc. v. Nicholas, 403 F.3d 223, 227
(4th Cir. 2005) (quoting approvingly that court's earlier
conclusion in Flowers v. Tandy Corp., 773 F.2d 585, 589
(4th Cir. 1985), that “[t]he express language of § 2520 is ...
not susceptible to a construction which would provide
a cause of action against one who manufactures or sells
a device in violation of § 2512 but does not engage in
conduct violative of § 2511”).
*21 Having come this far, the majority inexplicably
fails to reach the only logical conclusion:
a defendant who violates only § 2512—which
criminalizes “mail[ing],” “manufactur[ing],” “sell[ing],”
“assembl[ing],” “possess[ing],” and “advertis[ing]” devices
“primarily useful for” such interception—faces no civil
liability. Manufacture, marketing, and sale do not
“engage[ ]” the manufacturer or seller in the subsequent
use of the device by someone else.
The majority distinguishes Treworgy and Robson, which
referred specifically to possession of a device, but it does
not consider the other above-cited cases. See Peavy, 221
F.3d at 169 (rejecting liability for illegally procuring an
illegal interception); Flowers, 773 F.2d at 589 (rejecting
liability for illegal manufacture or sale). And the only
supporting authority the majority can muster is an
alternative holding from an out-of-circuit district court.
See DirecTV, Inc. v. Tasche, 316 F.Supp.2d 783, 789
(E.D. Wis. 2004) (adopting in the first instance a broad
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
21
Luis v. Zang, --- F.3d ---- (2016)
interpretation of § 2520 recognizing a private right of
action for all Wiretap Act violations).
Nor does the majority cogently explain why
manufacturing, marketing, and selling should be treated
differently from possession. Instead of addressing these
violations categorically, the majority dives into the facts of
this case: Awareness took an “active role.” This approach
introduces two flaws.
As a factual matter, the opinion confuses Awareness's
alleged violations of § 2512 with violations of § 2511. The
majority says that Luis can sue Awareness for violating
§ 2512 because of Awareness's “active[ ] engage [ment]
in the operation of WebWatcher by maintaining the
servers” that stored intercepted communications. But that
is exactly the activity that constitutes the violation of §
2511. It has nothing to do with intentionally “manufactur
[ing], assembl[ing], possess[ing], or sell[ing] any” device,
the activity prohibited by § 2512.
But even setting aside this confusion, the majority's
nebulous, fact-based analysis is hardly a reasoned way
to determine whether a cause of action exists. The
majority's holding, if prescriptive, will result in case-bycase determinations of whether this or that defendant's
actions rose to the level of “engagement” in a § 2511
violation. And although “engagement” is apparently
broader than actually committing the violation, the
majority's opinion gives no guidance as to where the
line is to be drawn. There is no reason to inject such
indeterminacy into the start of every Wiretap Act lawsuit.
The simple alternative to this whole muddle is apparent
from a straightforward reading of the statutory text. It has
been adopted by every circuit to consider the issue until
now. The plain meaning of § 2520(a) allows a plaintiff to
recover only from a defendant who personally intercepted,
disclosed, or used his communications in violation of §
2511.
I respectfully dissent.
All Citations
--- F.3d ----, 2016 WL 4363151
Footnotes
*
1
2
Judge Sutton recused himself from participation in this ruling. Judge Batchelder would grant rehearing for the reasons
stated in her dissent.
Luis's current theory of his case against Awareness is noticeably absent from his opposition to Awareness's motion to
dismiss. It first appears in his objections to the magistrate judge's R&R. Inexplicably, Awareness did not raise the issue
of waiver, thereby itself forfeiting an otherwise-sound basis for affirmance.
Luis's opposition to Awareness's motion to dismiss also focuses on Awareness's actions in manufacturing, marketing,
and selling WebWatcher.
End of Document
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
22
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