Wiretapping the Internet: Analyzing the Application of the Federal Wiretap Act’s Party Exception Online

Washington and Lee Journal of Civil Rights and Social Justice Volume 29 Issue 1 Article 7 Fall 2022 Wiretapping the Internet: Analyzing the Application of the Federal Wiretap Act’s Party Exception Online Hayden Driscoll Washington and Lee University School of Law, Follow this and additional works at: https://scholarlycommons.law.wlu.edu/crsj Part of the Civil Rights and Discrimination Commons, Communications Law Commons, Computer Law Commons, Human Rights Law Commons, Legislation Commons, Privacy Law Commons, and the Science and Technology Law Commons Recommended Citation Hayden Driscoll, Wiretapping the Internet: Analyzing the Application of the Federal Wiretap Act’s Party Exception Online, 29 Wash. & Lee J. Civ. Rts. & Soc. Just. 187 (2022). Available at: https://scholarlycommons.law.wlu.edu/crsj/vol29/iss1/7 This Note is brought to you for free and open access by the Washington and Lee Journal of Civil Rights and Social Justice at Washington and Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Journal of Civil Rights and Social Justice by an authorized editor of Washington and Lee University School of Law Scholarly Commons. For more information, please contact . Wiretapping the Internet: Analyzing the Application of the Federal Wiretap Act’s Party Exception Online Hayden Driscoll* Abstract The federal Wiretap Act—originally enacted to curtail the government’s unbridled use of wiretaps to monitor telephonic communications—was amended in 1986 to provide a private right of action, extending the Act’s Fourth Amendment-like protections to private intrusions. Since the advent of the internet, plaintiffs have attempted to predicate claims of unauthorized online privacy intrusions on the Wiretap Act. In response, defendants claim they are parties to the communications at issue and should be absolved of liability under the Act’s party exception. The federal circuit courts of appeal disagree on how the party exception applies in the internet context. This Note evaluates the courts’ differing conclusions and rationales and proposes two solutions, both of which share the common thread of applying heightened notice and consent requirements to online communications. Table of Contents I. Introduction .............................................................................. 189 II. The Wiretap Act ...................................................................... 192 * J.D. Candidate, May 2022, Washington & Lee University School of Law. First and foremost, I would like to express my gratitude for my primary support system: my wife, Kassidy, and my son, Asher. Their love and support provided me with a necessary foundation throughout the process of writing this Note. I would also like to thank my faculty advisor, Professor Joshua Fairfield, for his guidance and technological expertise. Finally, I want to thank my note editor, Shad Brown, for his encouragement and constructive feedback. 187 188 29 WASH. & LEE J. CIV. RTS. & SOC. JUST. 187 (2022) A. History of the Wiretap Act .................................................. 192 B. The Party Exception ............................................................ 194 III. The Technological Landscape ............................................... 194 A. The Evolution of Cookies ..................................................... 195 1. The Invention of the Cookie.............................................. 195 2. First- and Third-Party Cookies ........................................ 195 B. How Cookies Function ......................................................... 197 C. Circumvention of Private Efforts to Block Third-Party Cookies ...................................................................................... 199 IV. The Circuit Split .................................................................... 201 A. In re Pharmatrak, Inc. ......................................................... 202 B. United States v. Szymuszkiewicz ....................................... 205 C. In re Google, Inc. Cookie Placement Consumer Privacy Litigation................................................................................... 205 D. In re Facebook, Inc. Internet Tracking Litigation ............. 207 V. Proposed Solutions .................................................................. 208 A. Heightened Notice-and-Consent Requirement................... 209 B. Congress Should Update the Wiretap Act to Include a Definition for “Party”................................................................ 210 1. The Knowledge Requirement ........................................... 211 2. The Consent Requirement ................................................ 213 C. The Supreme Court Should Proffer a Clear Interpretation of the Wiretap Act’s Party Exception .......................................... 216 1. Principles of Statutory Interpretation ............................. 216 2. The Third Circuit’s Errant Interpretation of the Party Exception ............................................................................... 217 3. The Correct Interpretation of the Party Exception ......... 220 VI. Conclusion .............................................................................. 224 WIRETAPPING THE INTERNET 189 I. Introduction “There are few things as revealing as a person’s search history,” 1 and yet, Google collects this information on over 3.5 billion searches each day. 2 And Google isn’t the only one privy to this information. 3 After catching up on his Facebook news feed, John logged out of his account and began performing some searches on Google. John had been having internal struggles recently and was concerned about his mental health, so he began searching for options using search terms, such as “therapists near me.” John spent hours visiting different therapists’ websites and reading articles on mental health, using even more specific search terms to try and figure out what was going on with him. The next day, John came across a blog post by Nik Cubrilovic, which detailed Facebook’s tracking practices and revealed that even when Facebook users were logged out, Facebook continued tracking its users across the internet, collecting—among other things—the URLs users visited. John became concerned that the research he had done the previous day was not private. Would others know John had searched for help with his mental health? Upon further investigation, John learned that URLs contain search terms, allowing Facebook to see exactly what John had searched for. This wasn’t the worst part. John also learned that Facebook didn’t keep this data to itself; it sold the data to others. John was thoroughly disgruntled and felt that his privacy had been violated. He wanted to hold Facebook responsible and stop it from sharing this sensitive information with others. But he wasn’t sure how to do this. 4 1. Alfred Ng, Google is Giving Data to Police Based o (...truncated)