Cyber Law: Software and Computer Networks: Volume 2

THIS CASEBOOK contains a selection of U.S. Court of Appeals decisions that analyze and discuss issues surrounding cyber law. Volume 2 of the casebook covers the Fifth through the Eleventh Court of Appeals. * * * Title I of the Electronic Communications Privacy Act includes a private right of action, 18 U.S.C. § 2520, against anyone who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication," 18 U.S.C. § 2511(1)(a). [The ECPA also prohibits] the intentional use of the contents of information knowingly obtained through such interception. See id. § 2511(1)(d). The California Invasion of Privacy Act (CIPA), [ ] likewise includes a private right of action, Cal. Penal Code § 637.2(a), and [ ] similarly prohibits the unauthorized reading, or attempting to read, of "any message, report, or communication while the same is in transit or passing over any wire, line, or cable," as well as the use of "any information so obtained." Cal. Penal Code § 631(a). * * * The harms protected by these statutes bear a "close relationship" to ones that have "traditionally been regarded as providing a basis for a lawsuit." See Spokeo I, 136 S. Ct. at 1549. "Violations of the right to privacy have long been actionable at common law." Eichenberger, 876 F.3d at 983. And one of the several privacy torts historically recognized was "unreasonable intrusion upon the seclusion of another," which traditionally extends to, among other things, "tapping ... telephone wires" as well as "opening ... private and personal mail." Restatement (Second) of Torts § 652B cmt. b. There is a straightforward analogue between those traditional torts and the statutory protections codified in ECPA and CIPA against viewing or using private communications. Moreover, under the privacy torts that form the backdrop for these modern statutes, "[t]he intrusion itself makes the defendant subject to liability." Restatement (Second) of Torts § 652B cmt. b. "In other words, 'privacy torts do not always require additional consequences to be actionable.'" Patel, 932 F.3d at 1274 (quoting Eichenberger, 876 F.3d at 983). Thus, historical practice provides support not only for the conclusion that wiretapping is actionable, but also for the conclusion that a wiretapping plaintiff "need not allege any further harm to have standing." See Eichenberger, 876 F.3d at 984. Campbell v. Facebook, Inc., 951 F. 3d 1106 (9th Cir. 2020).