the defendant hospital is a party to the communication such that there was no interception that violates the Federal Wiretap Act. In examining what the court described as a circuit split between the First, Seventh and Ninth Circuits, on the one hand, and the Third Circuit, on the other hand, the court found that the hospital was not liable under the Federal Wiretap Act for alleged interception of the communication. In doing so, the court considered the Federal Wiretap Act’s criminal or tortious conduct exception and concluded that the transfer of metadata or website activity, without more, did not constitute criminal or tortious activity.The court nicely summarizedits inquiry—Plaintiff alleged violations of the Federal Wiretap Act, which provides that:“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” may be subject to (among other things) a civil penalty. 18 U.S.C. § 2511(1)(a), (5)(a)(ii). The same is true for any person who intentionally discloses or uses, or endeavors to disclose or use, the contents of an intercepted communication. 18 U.S.C. § 2511(1)(c), (d). Section 2511(2)(d) of the statute provides an exception when the person intercepting a communication “is a party to the communication or where one of the parties to the communication has given prior consent to such interception.” This so-called “party exception” does not apply, however, if the “communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.” 18 U.S.C. § 2511(2)(d). In addition, section 2511(3)(a) provides that “a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication . . . while in transmission on that service to any person or entity other than an addressee or intended recipient of such communi

65 Id. at 135 (quoting In re Pharmatrak, Inc. Privacy Litig., 329 F.3d 9, 18 (1st Cir. 2003)).66 Nickelodeon I, 2014 WL 3012873, at *13 (quoting 18 U.S.C. § 2511(d)(2)).67 18 U.S.C. §§ 2511(1)(a), 2510(4).

In Joffe v. Google, Inc., the Ninth Circuit held this yesterday:In the course of capturing its Street View photographs, Google collected data from unencrypted Wi-Fi networks. Google publicly apologized, but plaintiffs brought suit under federal and state law, including the Wiretap Act, 18 U.S.C. § 2511. Google argues that its data collection did not violate the Act because data transmitted over a Wi-Fi network is an “electronic communication” that is “readily accessible to the general public” and exempt under the Act.

Federal Wiretap Act The Federal Wiretap Act makes it a criminal offense, with certain specific exceptions, for any person to “intentionally intercept[], endeavor[] to intercept, or procure[] any other person to intercept or endeavor to intercept, any wire, oral, or written communication,” or to “manufacture[], assemble[], possess[], or sell[] any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications[.]” 18 U.S.C. §2511(1)(a) & 2512(1)(b). To fall within the scope of the Federal Wiretap Act, the interception of the communication must be contemporaneous.

Both papers ran stories about the contents of the tape, citing the source as a "Democratic Congressman." McDermott did not provide copies of the recording to the Ethics Committee until after the Martins gave a press conference where they identified McDermott as the person to whom they gave the tape.Boehner sued McDermott for civil liability under 18 USC § 2511(c), which "makes intentional disclosure of any illegally intercepted conversation a criminal offense if the person disclosing the communication knew or had 'reason to know' that it was so acquired." The D.C. Circuit Court of Appeals admitted that "[t]he contents of the tape had substantial news value."

Under federal law, 18 USC § 2511(2)(d), you only need the consent of one of the parties to the call to record it. That means that the company recording the call itself can provide the “consent” without notifying the customer that the call is being recorded.

The Wiretap Act provides in pertinent part, “[i]t shall not be unlawful . . . for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication.” 18 U.S.C. § 2511(2)(d). At issue was (1) whether the defendants acquired communications “content,” defined under the Act as “any information concerning the substance, purport, or meaning of th[e] communication,” §2510(8), and, if so, (2) whether dismissal was nevertheless proper because the defendants were “parties” to electronic transmissions that they acquired and tracked, §2511(2)(d).

The plaintiff claimed that the defendant Awareness Technologies, Inc. markets the WebWatcher brand as allowing customers to create a secret record of the target’s computer activity in “near real-time” on its cloud servers. He alleged that the WebWatcher software was used to illegally intercept his communications, and that Awareness marketed WebWatcher to encourage those illegal uses.In an opinion by Judge Gilman, a divided panel held that the plaintiff stated a claim under 18 U.S.C. § 2511, 2512 & 2520(a). Following other circuits, it held that an “intercept” under the Wiretap Act must occur “contemporaneously with the transmission” of the communication.

The Wiretap Act forbids the intentional interception of “any wire, oral, or electronic communication.” 18 U.S.C. § 2511(1)(a). It also prohibits a person’s intentional disclosure or use of “the contents of any wire, oral, or electronic communication” when a person knows or has reason to know “that the information was obtained through the interception of a wire, oral, or electronic communication.”

Here's what the 9th Circuit said at the time:In the course of capturing its Street View photographs, Google collected data from unencrypted Wi-Fi networks. Google publicly apologized, but plaintiffs brought suit under federal and state law, including the Wiretap Act, 18 U.S.C. § 2511. Google argues that its data collection did not violate the Act because data transmitted over a Wi-Fi network is an “electronic communication” that is “readily accessible to the general public” and exempt under the Act.