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Volume 107

Note

Cookies and Wires: Can Facebook Lure Users Into Divulging Information Under the Wiretap Act’s Party Exception?

Richard T. Wang, B.A., Washington University in St. Louis, 2017; J.D. Candidate, Cornell Law School, 2022

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8 Feb 2022

The advent of the Internet brought immeasurable benefits11. See Lisa Eadicicco, Obama Wants to Reclassify the Internet by Turning It Into a Utility, BUSINESS INSIDER (Nov. 10, 2014, 9:36 AM), https:// www.businessinsider.com/president-obama-thinks-the-internet-should-be-autility-2014-11 [https://perma.cc/FZD2-C9TS] (noting that former-President Barack Obama argued that the FCC should recognize the Internet as a vital service); Internet Access Is ‘a Fundamental Right’, BBC NEWS, http://news.bbc.co.uk/2/ hi/8548190.stm [https://perma.cc/YR82-K5QS] (last updated Mar. 8, 2010) (“Almost four in five people around the world believe that access to the Internet is a fundamental right . . . .”). to society in various ways—providing convenient access to information,22. Kotagiri Ramamohanarao, Kapil Kumar Gupta, Tao Peng & Christopher Leckie, The Curse of Ease of Access to the Internet, in Information Systems Security 234 (Patrick Drew McDaniel & Shyam K. Gupta, eds., Lecture Notes in Computer Science Series No. 4812, 2007) (“The Internet has emerged as one of the most convenient and widely used media for exchanging information. The amount of information that it contains is unprecedented . . . [and] the main factor that led to its success is the ease with which anyone can access this information.”). facilitating the purchase and sale of goods (from Amazon33. Clare Duffy, How Jeff Bezos Changed the World, CNN, https:// www.cnn.com/2019/08/16/tech/jeff-bezos-amazon/index.html [https:// perma.cc/LMB5-XVWF] (last updated Aug. 16, 2019) (noting that Amazon “disrupted the retail industry” with its implementation of online shopping). to Fintech44. See Lenny Sanicola, What is FinTech?, HUFFPOST (Feb. 13, 2017, 2:50 PM), https://www.huffpost.com/entry/what-isfintech_b_58a20d80e4b0cd37efcfebaa [https://perma.cc/KD4A-8WVA] (noting how FinTech companies have used Internet-based applications to provide financial services to consumers).), and offering an invaluable method of social and political communication.55. See Matt Richtel, E-Mail Gets an Instant Makeover, N.Y. TIMES (Dec. 20, 2010), https://www.nytimes.com/2010/12/21/technology/21email.html [https://perma.cc/V7J4-ZN67] (noting the rise in preference among young people for online chats and text messages due to their ability to facilitate real time communication); Richard T. Wang & Patrick D. Tucker, How Partisanship Influences What Congress Says Online and How They Say It, 49 AM. POL. RES. 76, 76 (2021) (citing GARY LEE MALECHA & DANIEL J. REAGAN, THE PUBLIC CONGRESS: CONGRESSIONAL DELIBERATION IN A NEW MEDIA AGE 18 (2012); Scott E. Adler, Chariti E. Gent & Cary B. Overmeyer, The Home Style Homepage: Legislator Use of the World Wide Web for Constituency Contact, 23 LEGIS. STUD. Q. 585, 585) (noting that members of Congress believe the Internet provides an important and low-cost means of communicating with their constituents).

The United States has largely left the ways in which companies collect and utilize user data unregulated.66. See Dobkin, supra note 10, at 8 (“[T]here is no sweeping standard for how
private firms treat data . . . .”); Yonatan Lupu, The Wiretap Act and Web Monitoring: A Breakthrough for Privacy Rights?, 9 VA. J.L. & TECH. 1, 5 (2004) (“Despite continuous calls for a definitive legislative stance on the protection of online privacy rights, Congress has not enacted a comprehensive statute.”).
Because Congress has failed to establish a general data privacy regime, Internet users frequently turn to the Wiretap Act to seek redress in cases involving user data and privacy. However, the Wiretap Act’s statutory language has largely failed to keep up with the development of Internet communications77. See Deirdre K. Mulligan, Reasonable Expectations in Electronic Communications: A Critical Perspective on the Electronic Communications Privacy Act, 72 GEO. WASH. L. REV. 1557, 1557, 1559 (2004) (noting that Congress last amended the Wiretap Act in 1986, before the creation of the World Wide Web, and that the Wiretap Act has “failed to keep pace with changes in and on the Internet”). and courts have struggled to apply the Act in such contexts.88. infamous) for its lack of clarity.” Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457, 462 (5th Cir. 1994); see also In re Pharmatrak, Inc., 329 F.3d 9, 21 (1st Cir. 2003) (“We share the concern . . . about the judicial interpretation of a statute written prior to the widespread usage of the internet and the World Wide Web in a case involving purported interceptions of online communications.”); United States v. Smith, 155 F.3d 1051, 1055 (9th Cir. 1998) (“When the Fifth Circuit observed that the Wiretap Act ‘is famous (if not infamous) for its lack of clarity’, it might have put the matter too mildly.”). As part of the courts’ struggle to interpret and apply the Wiretap Act to Internet communications, the Ninth Circuit recently issued a holding in In re Facebook, Inc. Internet Tracking Litigation99. 956 F.3d 589 (9th Cir. 2020). (hereby referred to as “In re Facebook”) deviating from the Third Circuit’s holding in In re Google Inc. Cookie Placement Consumer Privacy Litigation1010. 806 F.3d 125 (3d Cir. 2015). (hereby referred to as “In re Google”) regarding the applicability of the Wiretap Act’s party exception to third-party websites’ cookies practices.1111. The U.S. Supreme Court has denied certiorari to hear Facebook’s appeal of the decision in In re Facebook, leaving the disagreement in interpretation between the Ninth and Third Circuits unresolved. Facebook, Inc. v. Davis, 141 S. Ct. 1684 (2021).

This Note analyzes the circuit split regarding the Wiretap Act’s party exception and cookies, and recommends a framework to aid in the application of the Wiretap Act to Internet communications. Part I of this Note provides background information on how cookies operate, the history of the Wiretap Act, and previous litigation concerning the meaning of “intercept” under the Wiretap Act. Part II discusses several important cases involving the Wiretap Act and cookies. Part III describes the split between the Third and Ninth Circuits’ interpretations of the Wiretap Act’s party exception in In re Google and In re Facebook, respectively. Part IV argues that courts should establish an additional “surreptitious tampering” framework to provide guidance on the meaning of “intercept” under the Wiretap Act and that it is ultimately unclear as to whether third-party websites can use cookies to perform an interception. Part IV continues to argue that Google and Facebook should not qualify for the Wiretap Act’s party exception (assuming they are able to intercept, and have intercepted, users’ communications through the use of cookies). Part V discusses the limitations of the “surreptitious tampering” framework and the need for congressional legislation.

To read this Note, please click here: Cookies and Wires: Can Facebook Lure Users Into Divulging Information Under the Wiretap Act’s Party Exception?

References

References
1 See Lisa Eadicicco, Obama Wants to Reclassify the Internet by Turning It Into a Utility, BUSINESS INSIDER (Nov. 10, 2014, 9:36 AM), https:// www.businessinsider.com/president-obama-thinks-the-internet-should-be-autility-2014-11 [https://perma.cc/FZD2-C9TS] (noting that former-President Barack Obama argued that the FCC should recognize the Internet as a vital service); Internet Access Is ‘a Fundamental Right’, BBC NEWS, http://news.bbc.co.uk/2/ hi/8548190.stm [https://perma.cc/YR82-K5QS] (last updated Mar. 8, 2010) (“Almost four in five people around the world believe that access to the Internet is a fundamental right . . . .”).
2 Kotagiri Ramamohanarao, Kapil Kumar Gupta, Tao Peng & Christopher Leckie, The Curse of Ease of Access to the Internet, in Information Systems Security 234 (Patrick Drew McDaniel & Shyam K. Gupta, eds., Lecture Notes in Computer Science Series No. 4812, 2007) (“The Internet has emerged as one of the most convenient and widely used media for exchanging information. The amount of information that it contains is unprecedented . . . [and] the main factor that led to its success is the ease with which anyone can access this information.”).
3 Clare Duffy, How Jeff Bezos Changed the World, CNN, https:// www.cnn.com/2019/08/16/tech/jeff-bezos-amazon/index.html [https:// perma.cc/LMB5-XVWF] (last updated Aug. 16, 2019) (noting that Amazon “disrupted the retail industry” with its implementation of online shopping).
4 See Lenny Sanicola, What is FinTech?, HUFFPOST (Feb. 13, 2017, 2:50 PM), https://www.huffpost.com/entry/what-isfintech_b_58a20d80e4b0cd37efcfebaa [https://perma.cc/KD4A-8WVA] (noting how FinTech companies have used Internet-based applications to provide financial services to consumers).
5 See Matt Richtel, E-Mail Gets an Instant Makeover, N.Y. TIMES (Dec. 20, 2010), https://www.nytimes.com/2010/12/21/technology/21email.html [https://perma.cc/V7J4-ZN67] (noting the rise in preference among young people for online chats and text messages due to their ability to facilitate real time communication); Richard T. Wang & Patrick D. Tucker, How Partisanship Influences What Congress Says Online and How They Say It, 49 AM. POL. RES. 76, 76 (2021) (citing GARY LEE MALECHA & DANIEL J. REAGAN, THE PUBLIC CONGRESS: CONGRESSIONAL DELIBERATION IN A NEW MEDIA AGE 18 (2012); Scott E. Adler, Chariti E. Gent & Cary B. Overmeyer, The Home Style Homepage: Legislator Use of the World Wide Web for Constituency Contact, 23 LEGIS. STUD. Q. 585, 585) (noting that members of Congress believe the Internet provides an important and low-cost means of communicating with their constituents).
6 See Dobkin, supra note 10, at 8 (“[T]here is no sweeping standard for how
private firms treat data . . . .”); Yonatan Lupu, The Wiretap Act and Web Monitoring: A Breakthrough for Privacy Rights?, 9 VA. J.L. & TECH. 1, 5 (2004) (“Despite continuous calls for a definitive legislative stance on the protection of online privacy rights, Congress has not enacted a comprehensive statute.”).
7 See Deirdre K. Mulligan, Reasonable Expectations in Electronic Communications: A Critical Perspective on the Electronic Communications Privacy Act, 72 GEO. WASH. L. REV. 1557, 1557, 1559 (2004) (noting that Congress last amended the Wiretap Act in 1986, before the creation of the World Wide Web, and that the Wiretap Act has “failed to keep pace with changes in and on the Internet”).
8 infamous) for its lack of clarity.” Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457, 462 (5th Cir. 1994); see also In re Pharmatrak, Inc., 329 F.3d 9, 21 (1st Cir. 2003) (“We share the concern . . . about the judicial interpretation of a statute written prior to the widespread usage of the internet and the World Wide Web in a case involving purported interceptions of online communications.”); United States v. Smith, 155 F.3d 1051, 1055 (9th Cir. 1998) (“When the Fifth Circuit observed that the Wiretap Act ‘is famous (if not infamous) for its lack of clarity’, it might have put the matter too mildly.”).
9 956 F.3d 589 (9th Cir. 2020).
10 806 F.3d 125 (3d Cir. 2015).
11 The U.S. Supreme Court has denied certiorari to hear Facebook’s appeal of the decision in In re Facebook, leaving the disagreement in interpretation between the Ninth and Third Circuits unresolved. Facebook, Inc. v. Davis, 141 S. Ct. 1684 (2021).
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