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Crime Privacy United States

Maker of Web Monitoring Software Can Be Sued (cio.com) 99

Posted by msmash from the consequences dept.
Reader Presto Vivace shares a CIO report: The maker of so-called spyware program WebWatcher can be sued for violating state and federal wiretap laws, a U.S. appeals court has ruled, in a case that may have broader implications for online monitoring software and software as a service. The U.S. Court of Appeals for the Sixth Circuit rejected WebWatcher vendor Awareness Technologies' motion to dismiss a lawsuit against the company. The appeals court overturned a lower court ruling granting the motion to dismiss. The appeals court, in a 2-1 decision rejected Awareness' claims that WebWatcher does not intercept communications in real time, in violation of the U.S. wiretap act, but instead allows users to review targets' communications. While plaintiff Javier Luis' lawsuit doesn't address real-time interception of communications, his allegations "give rise to a reasonable inference" of that happening, Judge Ronald Lee Gilman wrote. Awareness pitches WebWatcher as monitoring software for parents and employers. "All WebWatcher products install easily in 5 minutes or less, are undetectable (thus tamper proof) and all recorded data is sent to a secure web-based account which allows you to monitor kids and employees at your convenience from any computer," the company says.
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Maker of Web Monitoring Software Can Be Sued More

Maker of Web Monitoring Software Can Be Sued

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  • Can be sued, but not necessarily successfully. (Score:5, Informative)

    by Anonymous Coward on Wednesday August 17, 2016 @03:36PM (#52721583)

    Realize what this is, and what it isn't. It's not setting aside a jury verdict. The lower court through the case out entirely because, as the lower court interpreted the laws, there was no reasonable case to be made that the actions of WebWatcher could be shown to violate the specifics of wiretapping law.

    The appeals court ruled that the lower court interpreted the statue too narrowly, and there was at least a dispute over whether WebWatcher's activity could be held to violate certain portions of the statute.

    That is NOT THE SAME as the appeals court ruling that WebWatcher DOES violate the wiretapping statue, or that they won't prevail eventually on their interpretation of the statute. It means that it's not a sufficient slam dunk that we can dispense with a trial.

    • Re: (Score:2)

      by mark-t ( 151149 )
      If you can't succeed at doing something how can you say that you "can" do it in the first place? At most all you can say is that you may *try* to do that thing, but the inability to do it successfully would ordinarily mean that you still can't actually do it.

  • Impact? (Score:1)

    by Anonymous Coward

    So what does this do to proxies and packet capture systems, not to mention wireshark?

    • I would submit that Packet Capture is either Wiretapping and Wireshark (and other tools, like proxies, firewalls etc etc) are all in violation, or they are not, which would excuse this particular example. It would be a simple case.

      In this case, I would suggest that the ONLY reason they are being sued isn't because of what it does(Technically), but because "Spying" (histrionics)

      • Re: (Score:3)

        by DRJlaw ( 946416 )

        I would submit that Packet Capture is either Wiretapping and Wireshark (and other tools, like proxies, firewalls etc etc) are all in violation, or they are not, which would excuse this particular example. It would be a simple case.

        It makes a difference whether:
        1. You're running Wireshark on your own network to capture traffic sent to or by you (not wiretapping)
        2. Your service provider or employer is running Wireshark on its network (for network management purposes, not wiretapping)
        3. You're running Wires

  • Fix: Counter Suit (Score:4, Interesting)

    by s.petry ( 762400 ) on Wednesday August 17, 2016 @03:51PM (#52721659)

    Read the case: Suspicious person installs software (yeah, we all know if you suspect it's probably true but we are taught to live and love).
    Catches husband meeting up with some other woman.
    Expected marital troubles ensue.
    Angry guy gets mad and files a suit against people because they got caught.

    Now, take all that and replace it with a man catching his cheating wife. I wrote it in the opposite gender because some people are simply idiots and this makes it harder for them to be idiots.

    Harm was not caused by the company, but harm was caused to the company. I'm fine with the company being sued but a counter for damages due to both litigation and libel are well within reason.

    Time to wear the big boy pants and be responsible for your actions. Welcome to equality!

    • Re: (Score:1)

      by Anonymous Coward

      I actually used WebWatcher and caught my ex-wife cheating on me. The software (web based) sucks but it did the job. It's a shame they're being sued.

      • There's no law requiring anyone to refrain from having sex with someone they are not married to. This is true even for married couples. Catching a spouse having an affair behind your back sucks, and if it were against the law, I'd have a couple of scalps nailed to the wall somewhere, but your suspicions don't give you the right to intercept someone else's communications. They also don't give you the right to invade their privacy. Marriage (or any relationship) doesn't give you the right to act like an assho

        • Re: (Score:2)

          by Altrag ( 195300 )

          There's a distinct difference between Web Watcher and those other services: You are (often implicitly) agreeing to be tracked by Microsoft, Facebook, your ISP and whoever else you deal with via their EULAs and/or service agreements.

          Google is a possible exception since there's a level of indirection there (you're "agreeing" to use the website that hosts the ads and the website makes the further agreement with Google on your behalf.. or something to that effect.)

          Web Watcher is a different story. If I set up

          • "Implicit" doesn't amount to shit in court. Rapists have used that excuse because they bought a couple of drinks so sex was "implied."

            Also, if the party is reasonalbly aware that you didn't read the notice, it's not binding - same as too-fine small print. So yes,ignorance is an excuse. If the judge has to put on his or her reading glasses to read it, it's too small to hold up in court.

            • If the judge has to put on his or her reading glasses to read it, it's too small to hold up in court.

              On a web-page EULA, the font is as small or as large as you want it to be. If you make it too small to read, it is YOUR fault and the implicit agreement still holds. Ignorance of how to configure your web browser to view text is not an excuse.

              • "This is how it was presented, Mr. Judge." "Seems reasonable that they presented it that way so that you would be disinclined to read it. Not valid!"

                • "This is how it was presented, Mr. Judge."

                  You agreed to a contract without reading it, and without taking any effort to read it. You can control the font sizes, it's your responsibility. Ignorance is no excuse.

                  "Seems reasonable that they presented it that way so that you would be disinclined to read it. Not valid!"

                  Every contract is presented in a way that people are disinclined to read them. How they present it is up to you in the long run.

                  • Fortunately, jurisprudence (you know, what judges rule) totally disagrees with you. Ask your local consumer protection office.

            • Re: (Score:2)

              by Altrag ( 195300 )

              Rapists have used that excuse because they bought a couple of drinks so sex was "implied."

              That's not even close to the same thing. In the case of the website, the agreement exists and the implicit part is assuming you've read it (in which case its explicit.) Which is why every single one of those things contains some text similar to "by using this service you agree to our terms" along with "and if you disagree, you're free to uninstall/not use it."

              The sex equivalent would be buying the girl a drink and then before you hand it to her stating "if you drink this, you are contractually obligated t

              • "Implicit" doesn't stand up in court.

                The is no "implicit" right for you to spy on activities with a third party just because you suspect your spouse of cheating. There's not even an "implicit" right to spy on your spouse. Neither of them are bound by any EULA that YOU agreed to - basic contract law - you cannot bind a 3rd party to an agreement without their consent, as expressed via a power of attorney. So, you are the one who needs "have your head checked and catch up to the 21st Century.

        • Re: (Score:1)

          by Anonymous Coward

          You're probably retarded. This is friendly advice: Do some research before looking like an idiot on the internet.

          You *should* invade your children's privacy. Until they are an adult, you are their one hedge against the bullshit of the world. Every television program they turn on and every website they open is seeking to exploit them and turn them into the lowest dregs of society. Society wants them to be a violence-seeking slut. They are bombarded by negative messages dressed up to look positive ("Huhr

          • Adultery is bad. Really bad.

            Totally agree. What reasonable person wouldn't?

            Worse-than-rape bad.

            Uh, wow. Are you seriously claiming that breaking a social contract is worse than physical, sexual violation?

            SMH. We are well and truly fucked.

            • As a survivor of sexual abuse, I can see where the GP is coming from. Look at it this way. You're in a loving relationship with somebody you trust with everything: your money, your body, your truck, your kids, your deepest secrets and fears. (OK, I'm a Texan, so truck might be first on that list.) Then you find out he's been lying and cheating for the last four years. Now it's suddenly as if you've been getting raped for four years and didn't even know it. It's not like you would have consented knowing that

              • I have no doubt that you'd feel emotionally violated, upset, etc.

                But as someone who shared an apartment with a woman who had been sexually abused by one person and then raped by another in whom she confided, I will never forget the sound of her screaming bloody murder in the next room upon waking from a nightmare of those experiences (luckily only a handful of times over several months). Do you frequently have nightmares where your ex-wife tortures and murders your family and friends in front of you?

                Having

          • Here it's against the law even for a private investigator, or the spouse, to stake out the family home to catch someone cheating. Privacy of the family dwelling beats suspicions every time.

            As for monitoring, etc., why not go for prevention instead? To use your gun example, bring up your kids in such a fashion that they're not going to go off half-cocked with a gun when they have a conflict. I don't scream "where are the parents" when a kid does a school shooting - I already know they're almost certainly gu

          • Re: (Score:2)

            by Sique ( 173459 )
            I don't get it. Where I live, adultery is just nothing. Even in divorce cases, adultery does not count. What counts is, if the broken marriage can be mended. If both sides agree that they don't want to continue with the marriage, and there is objective proof of the marriage being broken beyond repair (like the spouses living separated lives for more than a year), they can be divorced. It is never asked whose guilt it is.

            The reasoning behind this is that the problem with a marriage not working is always on

        • Re: (Score:2)

          by Megol ( 3135005 )

          You really have a fucked-up worldview about everything it seems. If not promoting your ideas about transsexualism (which are remarkably uninformed especially from you) it is some other topic where you can't even provide a shred of reasoning.

          There are adultery laws. There are no laws against doing normal snooping to see if there is something behind the suspicions (unless in extreme cases). The adult that _don't_ reading their childrens diaries etc. IF there are suspicions of something potentially serious goi

          • Most civilized places have done away with adultery laws. We don't want the Christian Taliban stoking the fires when there's a problem in a relationship, screaming "adultery adultery." There are two options, both of which are rational: split (amicably as possible) or fix the problems on both sides of the relationship. Bringing antiquated laws into it is a hindrance, not a help.

            The states that still have adultery laws on the books, I've already posted about how they are mostly a joke, not enforced, and not e

        • Think of how your children would feel if they caught you doing that sort of sh*t, reading their diaries, installing spyware to track them, etc.

          That's considered responsible and good parenting in 2016.

          • Think of how your children would feel if they caught you doing that sort of sh*t, reading their diaries, installing spyware to track them, etc.

            That's considered responsible and good parenting in 2016.

            Not in most advanced countries. If you can't just sit down with them and discuss your worries without first snooping around, you've already failed as a parent, and they have every right not to trust you or be honest with you because you've betrayed their trust. Kids learn by example, and the most influential example is their parents. You being a snoop teaches them that it's okay to snoop, there are no boundaries to it, not even in the family, and that trust is for wimps and fools.

            What next - turn into a s

            • Think of how your children would feel if they caught you doing that sort of sh*t, reading their diaries, installing spyware to track them, etc.

              That's considered responsible and good parenting in 2016.

              Not in most advanced countries.

              I'm not disagreeing with you. I was being extremely facetious. Because parents who for the last 20 years or more, have attmpted to shield their children from any and all adversity in their lives, have damn near destroyed their kids, producing healthy beautiful adults with no emotional maturity. These children, who never got an unstructured moment not supervised by their parents or some other adult, have remained children long after normal offspring would be raising families of their own. I feel so badly for

        • Re: (Score:1)

          by phorm ( 591458 )

          someone cheats on you, it's not that hard to dump them

          That is, if you don't mind up giving half of what you've spent your life earning...

          • someone cheats on you, it's not that hard to dump them

            That is, if you don't mind up giving half of what you've spent your life earning...

            I;m an atheist, but I agree with the Bible when it says that it's better to have a dry crust on a rooftop than a mansion and a bad partner.

            You have to accept some responsibility, if only for making a bad decision in the first place. Hopefully you'll recognize it the second or third time you go through the process, and make better choices.

            Just like you will have learned to get a pre-nup, or just shack up, or move to a jurisdiction that defaults to partnership of aquests only (you only split what was acquir

            • God bless you for suggesting moving. (Can't resist the irony!)

              I wish more people were willing to recognize that you have control of your own destiny at least to the extent of the laws you choose to live under.

        • There are still alienation of affection cases in civil law wherein the other spouse can sue you for sleeping with their spouse. And anyways puts you at risk of being on the wrong end of a fault divorce.
          • Civil lawsuits have SFA to do with crimes. No connection whatsoever. They're also very hard to win (because the one suing probably has their fair share of blame) , and impossible to file in no-fault jurisdictions. Only a loser would file for "alienation of affection" - this is not 50 years ago when a wife was regarded as quasi-property.
            • Civil law is still law, and creates real enforceable duties. There is a cause of action called tortious interference which occurs when a person intentionally damages the plaintiff's contractual or other business relationships. Why is the contract of marriage any less worth defending?
        • I've often wondered why this is the case. More states had laws against sodomy than adultery. Yet, to my mind adultery is far more heinous, since there's definitely one party not consenting who will be pretty hurt by the activity. In Texas, you could have a mistress, but you couldn't buttfuck your wife. (at least not legally) For all the talk about "Defense of Marriage" you would think adultery would be one of those things the Congress could agree on. Especially since some people have affairs across state li

          • Affairs across state lines were covered by the Mann Act. [wikipedia.org] They claimed it was intended to counter-act interstate prostitution, etc., but it was notorious for it's use in prosecuting high profile cases of consensual sex where the parties who were not married to each other went to make whoopie in another state.

            Prosecutions included people who actually didn't have sex - anything that would scandalize the snooty blue bloods was fair game as "debauchery", including attending a burlesque show.

    • Comment removed based on user account deletion

  • of a person's activity without consent or court order is illegal and should be punished.
    Keeping those recordings on a storage facility for later view does not change anything of the original act.
    Parents doing it to their minor children w/o consent of those is within their right of parents.
    So, a program installed concealed without consent is illegal.
    Surveillance cameras active in an area need to be disclosed, phone conversations/email activity within a company need to be disclosed to employees that this is h

    • I would surely agree if this was some snooping software that neither party knew about. I would also agree if the person had to hack a device to add the software, or even trick their cheating spouse into using a Library computer or some crap which you installed the software on. In this case, the only malfeasance possibly being claimed is that the cheater was caught.

      If you were right, every single home camera service is eligible for a lawsuit too. Hint: It's not the companies fault that people do immoral

    • Parents doing it to their minor children w/o consent of those is within their right of parents

      First, only stupid parents will do that. Second, no, it's not legal. You don't have the legal right to snoop on the person they are communicating with, and if your under-age kid is sending nudies of themselves, you've just committed a felony - downloading and possession of kiddie porn.

      Kids won't learn trust and boundaries if you don't demonstrate trust and respect their boundaries. Will they screw up? Most likely, same as I'm sure you did when you were their age.

      • > You don't have the legal right to snoop on the person they are communicating with,

        A parent has the right to protect their children from potential harm. If they are using _your_ devices you have the right to track ALL usage of them regardless of the user. Bad laws are out of touch with the reality.

        > and if your under-age kid is sending nudies of themselves, you've just committed a felony - downloading and possession of kiddie porn.

        Are the laws really this fucked up?

        So you as a parent can give them

        • Are the laws really this fucked up?

          No. Someone is not guilty of downloading kiddie porn because they monitor what their kids do on the computer. The kid, who is UPloading kiddie porn, can be charged.

          How about a sudden outbreak of common sense here.

          You must be new here. This is slashdot, proof that "common sense" isn't that common.

          • Both the kid uploading and the kid downloading can be charged with possession of kiddie porn. Maybe you should watch those ads on old-media TV warning kids )and their parents) of that.

            • Both the kid uploading and the kid downloading can be charged with possession of kiddie porn.

              Thus proving you read nothing of what you reply to, because I already said that. Perhaps before you order someone else to watch "old media TV", you should read the postings you reply to?

              But your claim was that the person doing the monitoring could be charged with downloading CP, which is patently absurd.

              • You said, and I quote:

                The kid, who is UPloading kiddie porn, can be charged.

                Nowhere did you say that the kid downloading the pics can be charged with possession of kiddie porn, putting a lie to your claim in your reply that you said:

                Perhaps YOU need to take your own advice and read your own posts? Or invest in a time machine so you can fix things retroactively.

                And if you download that same pic, especially if you believed that was what was going on, you can be charged. You had intent. You had the pics. You are not a cop doing it as part of your job. That's all that's needed.

                • Nowhere did you say that the kid downloading the pics can be charged with possession of kiddie porn,

                  Because in the context of that statement there was no reference to anyone downloading anything. You limited your statement to an uploader, so I did too. It should have been obvious that when I say the UPloader can be charged, I already assume the DOWNloader can be. You tried making it look like I had said that they cannot, which makes the implication of your statement a lie. Had you read my clear statement about the UPloader being chargeable, you would not have told me to watch TV to learn that the uploade

                  • You:

                    Nowhere did you say that the kid downloading the pics can be charged with possession of kiddie porn,

                    Sh*t, another lie. Here's what I wrote:

                    Both the kid uploading and the kid downloading can be charged with possession of kiddie porn.

                    Seems to me that when you write "You really don't have a grasp on the discussion here, do you?", you need to invest in a mirror. You have demonstrated twice that you can't grasp simple sentences, and are just making things up, throwing crap around in the hope that some sticks. Go vote for Drumpf - he's your kind of loser.

                    • You:

                      Nowhere did you say that the kid downloading the pics can be charged with possession of kiddie porn,

                      Sh*t, another lie. Here's what I wrote:

                      I fucking quoted you directly from YOUR OWN POSTING. [slashdot.org] Not only do you not read what you reply to, you don't read what you, yourself, write. That's it. You've lied about what I said, you've lied about what you said. You have nothing of value to say.

                    • You really are a fucking moron.

                      You wrote:

                      No. Someone is not guilty of downloading kiddie porn because they monitor what their kids do on the computer. The kid, who is UPloading kiddie porn, can be charged.

                      I replied:

                      Both the kid uploading and the kid downloading can be charged with possession of kiddie porn. Maybe you should watch those ads on old-media TV warning kids )and their parents) of that.

                      You did NOT previously say that the kid downloading the pics could be charged, just the uploader

                      No. Someone is not guilty of downloading kiddie porn because they monitor what their kids do on the computer. The kid, who is UPloading kiddie porn, can be charged.

                      Stop making shit up.

        • So, I'm an adult, I borrow your phone to make a phone call or for another purpose - guess what - you do NOT have the legal right to monitor my communications. And you most certainly don't have the right to monitor the communications of whoever I'm talking to. They come to harm because of it, they can sue your ass off because you don't have the consent of either party (so it doesn't matter if you live in a 1-party or a 2-party consent state).

          Also, if you're giving your teenage kids a bath and there's not a

          • So, I'm an adult, I borrow your phone to make a phone call or for another purpose - guess what - you do NOT have the legal right to monitor my communications. And you most certainly don't have the right to monitor the communications of whoever I'm talking to.

            Which is why of course, no one borrows my phone.

          • Also, if you're giving your teenage kids

            You started this by referring to "underage kids". The OP replied in context, and now you turn it creepy by changing to "teenage". Of course, you can resort to ad hominem after you change the context that way, so it's a win for you.

            So, I'm an adult, I borrow your phone to make a phone call or for another purpose - guess what - you do NOT have the legal right to monitor my communications.

            Assuming your conditional hypothesis is correct, guess what? I get the detailed phone records so I know the number you called and for how long. I don't need a subpoena or a court order. My phone, my rules. If you don't like it, don't bother asking. It won't matter, because I woul

            • Children includes teenagers, and it's far more likely that parents will be snooping on their teenagers than on their 5-year-olds when it comes to sex, drugs, and rock-n-roll. And snooping on your kids IS creepy. It's also setting a bad example for your kids. Talk to them instead. If you can't talk to them, look in the mirror, because you're the bigger problem.

              • Children includes teenagers

                Standard logical fallacy: "all A is B does not mean "all B is A". You changed the context from "underage children", which does include teenagers, but also includes four and five year olds. You changed the context so you could accuse someone of being a pervert because he gives his teenage children baths. That's pathetic.

                And snooping on your kids IS creepy.

                It's part of being a parent.

          • > So, I'm an adult, I borrow your phone to make a phone call or for another purpose - guess what - you do NOT have the legal right to monitor my communications.

            If you said "you do not have a MORAL right" you'd get no argument from me. However, since you specifcally said "legal right", I'll inform you that you're quite mistaken. Dozens of people have tried to make that argument in court and they've consistently failed. The owner of a device or network has an absolute LEGAL right to monitor the usage of

    • So is it the fault of Sony for making the camcorder, or the user of the camcorder?

    • Surveillance cameras active in an area need to be disclosed

      Not true. Some places will call them out because they want to deter criminal activity ("Smile! You're on camera..."), but generally, you don't need consent to take someone's picture (including video). Places where privacy would normally be expected, like bathrooms, changing rooms, etc, are an exception.

      Take a stroll through a department store and look up. Those small black domes are cameras that no one tells you are there.

  • This sort of software should be no different from recorded phone calls. As long as the user is notified in a significant, reasonable way, this type of software should be allowed (i.e. just like most large business networks notify when you log in.) If the user is not notified that they are being recorded or monitored, it should be illegal under wiretap laws.

    • Re: (Score:1)

      by Anonymous Coward

      A company can't be sued for making equipment that can record a phone call, can it?
      This spyware should be no different. It's not the company who is liable for wiretapping, it's people who install the software who are liable if they install it in a way that violates privacy laws.

    • This sort of software should be no different from recorded phone calls. As long as the user is notified in a significant, reasonable way, this type of software should be allowed (i.e. just like most large business networks notify when you log in.) If the user is not notified that they are being recorded or monitored, it should be illegal under wiretap laws.

      Washington state US here. As long as one person is aware of the recording it's ok, you being the one, it's legal.

      • Same where I am, but you can't record someone else's conversation; you have to be a party in the conversation to get the right to record it. As websites are concerned, that's already the case (after all, that's how most websites make their money), but when you use a desktop application, who is the second party? I would think that recording that would be similar to recording a person talking to himself, which is illegal without notification everywhere in the USA.
  • The original article I read states that the company sells this software as part of a service package. You don't store the data, they do thus putting them in the loop of the data interception. This makes them the eves dropping party and not the person doing the deed. I'm in a 'right to monitor state' and this wouldn't fly here either. IANAL, YMMV.

  • Someone should sue over the Alexa software that was bundled in every MS operating system from (IIRC) Windows 95 thru 2003.

  • What is it now? Secure or web based, you can't have both.

  • and how would this affect Google? I feel I owe Google for the software they have made freely available.

    The Motorola moto phones have their own tracking software meant to be of use/assistance to the user, it's ToS claims nobody but them will have access to any obtained data - (I'm afraid I laughed at that one), seeing as Google owns the company.

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