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Under the Wiretap Act, a party may consent to the interception of only part of a communication or to the interception of only a subset of its communications. Thus, a reviewing court must inquire into the dimensions of the consent and then ascertain whether the interception exceeded those boundaries. Consent may be explicit or implied, but it must be actual consent rather than constructive consent. Consent should not casually be inferred. Without actual notice, consent can only be implied when the surrounding circumstances convincingly show that the party knew about and consented to the interception.
Pharmaceutical companies invited users to visit their websites to learn about their drugs and to obtain rebates. An enterprising company, Pharmatrak, sold a service, called "NETcompare," to these pharmaceutical companies. That service accessed information about the internet users and collected certain information meant to permit the pharmaceutical companies to do intra-industry comparisons of website traffic and usage. Most of the pharmaceutical companies were emphatic that they did not want personal or identifying data about their web site users to be collected. In connection with their contracting to use NETcompare, they sought and received assurances from Pharmatrak that such data collection would not occur. As it turned out, some such personal and identifying data was found, using easily customized search programs, on Pharmatrak's computers. Plaintiffs, on behalf of the purported class of internet users whose data Pharmatrak collected, sued both Pharmatrak and the pharmaceutical companies asserting, inter alia, that they intercepted electronic communications without consent, in violation of the Electronic Communications Privacy Act of 1986 (ECPA). The district court entered summary judgment for defendants on the basis that Pharmatrak's activities fell within an exception to the statute where one party consents to an interception. The court found the client pharmaceutical companies had consented by contracting with Pharmatrak and so this protected Pharmatrak. The plaintiffs dismissed all ECPA claims as to the pharmaceutical companies. This appeal concerns only the claim that Pharmatrak violated Title I of the ECPA.
Did the district court err in entering summary judgment for defendants on the basis that Pharmatrak's activities fell within an exception to the statute where one party consents to an interception?
The court held that the district court incorrectly interpreted the "consent" exception to the ECPA and that the company "intercepted" the communication under the ECPA. The district court erred by finding that the only relevant question was whether the pharmaceutical companies consented to the company's service; on the undisputed facts they did not consent. They sought and received assurances that the service would not collect personal information of its users, and when they were sued by its users, they promptly cancelled the service. The users did not consent because the websites gave no indication that use meant consent to collection of personal information by the company. The company intercepted the communication because its acquisition was contemporaneous with the transmission by the users.