Published by LawTechie - February 7, 2014 - LawTechie

Internet LawyerA class of consumers has asked a federal appeals court to revive a class action against Google and other digital groups for allegedly violating the federal Wiretap Act when they circumvented Safari browser settings to collect data on users. The data collected included urls of websites visited, times visited, etc…

The Wiretap Act makes it illegal to intercept the content of electronic communications. The lower district court had previously ruled that website urls are merely “metadata” which are not content for the purposes of the Wiretap Act. According to MediaPost:

The consumers contend that they “suffered concrete injury the moment the defendants intruded upon their protected right to be left alone.” They add that being deprived of privacy is in itself sufficient harm to warrant a lawsuit. “What plaintiffs intended to keep private is no longer so,” they say in their appellate brief.

“A URL such as conveys loads of such information, telling much about the substance, purport and meaning,” they argue. “Here, a user is seeking information about how to stop drinking and get sober.”

This is a really good point, and of course this point can be (and has been) made with regard to all sorts of metadata. E.g., doesn’t the time spent by a user in a certain location convey the content of that user’s private activities?

In the end, stringing together a group of “unprotected” metadata can paint a pretty accurate picture of a user’s private life. If a clear reading of the Wiretap Act does not provide sufficient protection for this sort of privacy, then it probably makes sense for our legislators to have a conversation about privacy law updates.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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