Computer Spyware Manufacturer May Be Responsible for Privacy Violations of Third Party

Divorce has sparked disagreements in many different areas, but most interesting are privacy issues and the use of spyware. In 2010, Catherine Zang used her computer to maintain a relationship with a man, Javier Luis, who was not her husband. Suspicious of his wife’s online activities, Mr. Zang installed a spyware product called WebWatcher to monitor his wife’s online relationship with Javier. Mr. Zang was then able to use the electronic communications obtained from the surveillance as evidence in the divorce action against his wife. Upon learning of the existence of the surveillance of his conversations with Mrs. Zang, Javier, filed a separate lawsuit against Mr. Zang, the manufacturer of the product, and others.

The manufacturer filed a motion to be dismissed from the lawsuit but last August, the Sixth Circuit Court of Appeals said that the manufacturer of the spyware WebWatcher may have violated the federal Wiretap Act and other Ohio laws if it was aware that its process of obtaining communications fell under the definition of “intercept” intended by the federal Wiretap Act. In addition to the process of obtaining communications itself, the Court relied on the company’s marketing claim that electronic communications could be reviewed by WebWatcher technology “in near real-time, even while the person is still using the computer.” Although this is not a final finding of damages against the company, the Court held that the manufacturer very well may be in violation of the law and giving spouses’ paramours a potential source for the recovery of damages.