⚖ Can You Legally Disclose Illegally Intercepted Communications to the Author of the Communication?

CRIMINAL LAW 101 EXAM (You have 1.5 hours)

QUESTION: Is it a violation of the Wiretap Act to disclose your own email to yourself?

(Stop laughing) (Seriously, you are being graded on this)

FACTS: "The action arises from the [PLAINTIFF and DEFENDANT]'s acrimonious divorce. DEFENDANT accused PLAINTIFF of serial infidelity, so in discovery PLAINTIFF asked DEFENDANT for all documents related to that accusation. DEFENDANT complied and produced copies of incriminating emails between PLAINTIFF and several other women..."

CAUSE OF ACTION: "PLAINTIFF alleges that DEFENDANT violated the Wiretap Act by surreptitiously placing an auto-forwarding 'rule' on his email accounts that automatically forwarded the messages on his email client to her. He also claims that DEFENDANT's divorce lawyer violated the Act by 'disclosing' the intercepted emails in response to his discovery request. The district judge dismissed the suit on the pleadings."

On this final exam, we concern ourselves only with the later action regarding disclosing of emails.

RULE: 18 USC s 511(1)(c) prohibits the disclosure of intercepted communications:

[A]ny person who- (c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; . . . shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).

ANALYSIS: Getting past whether this was in fact an interception, is it disclosure? Couple problems, as the court points out:

• PLAINTIFF "already knew the contents of the intercepted emails."
• PLAINTIFF "invited their disclosure by requesting them in discovery in the divorce action" - the court suggests that requesting your own emails in discovery is tantamount to "consent" for disclosure of those communications.
• Then the Court pontificates, "to 'disclose' something means '[t]o make (something) known or public.'... [DEFENDANT's ATTORNEY] did not publicly disclose PLAINTIFF's emails, and their content was hardly unknown to PLAINTIFF. "

CONCLUSION: "[E]ven if the emails were unlawfully intercepted, [DEFENDANT's ATTORNEY] did not unlawfully disclose their content by producing them in response to PLAINTIFF's discovery request."

Nope, it aint a violation of the Wiretap Act to disclose the contents of a communication to the communicator of that communication.

NOTE: 18 USC 2511(1)(c) specifically states anyone who "intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication" has violated the Act. Here we have a play with three actors. We have the communicator, the interceptor, and the "other." PLAINTIFF is the communicator. DEFENDANT is the interceptor. For this tragedy to work, there needs to be one more person. There needs to be the "other" (and DEFENDANT's ATTORNEY counts in this play as DEFENDANT and does not count as "other."). Lacking the "other," the tragedy is incomplete and the cause of action fails.

Epstein v. Epstein, Court of Appeals, 7th Circuit 2016

Video :: "Putting Transparency To The Test" - Lorrie Cranor, CTO, Federal Trade Commission

Workshop :: FTC Will Host Public Workshop to Explore Advertising Disclosures in Online and Mobile Media on May 30, 2012

"The Federal Trade Commission will host a day-long public workshop to consider the need for new guidance for online advertisers about making disclosures required under FTC law. The guidance will address technological advancements and marketing developments that have emerged since the FTC first issued its online advertising disclosure guidelines known as “Dot Com Disclosures” 12 years ago. 

 

The workshop, to be held on May 30, will cover revising the Dot Com Disclosures so they illustrate how to provide clear and conspicuous disclosures in the current online and mobile advertising environment. Any revisions will be consistent with the goals of the original guidelines and will continue to emphasize that consumer protection laws apply equally to online and mobile marketers, and to other media. The FTC began seeking input for revising the Dot Com Disclosures guidelines last year.  

"Topics may include:

• How can effective disclosures be made on social media platforms and mobile devices – including when they are used in commercial texting – that limit the space available for disclosure?  For example, when consumers are paid or receive other benefits for providing an endorsement, how can they effectively disclose on platforms that allow only short messages or a simple sign of approval?
• When can disclosures provided separately from an initial advertisement be considered adequate?  For example, if a consumer receives a location-based ad for a discounted cup of coffee on her mobile device because she is near a particular coffee shop, what terms must be disclosed in the mobile ad and what terms, if any, do not have to be disclosed until the consumer enters the coffee shop to make her purchase?
• What are the options when using devices that do not allow downloading or printing the terms of an agreement?  For example, is providing consumers a means to send a copy of the agreement to themselves to read later an effective way to provide this information?
• How can disclosures that are made in the original advertisement be retained when the advertisement is aggregated (for example, on dashboards) or re-transmitted (through, for example, re-tweeting)?  
• What are the disclosure opportunities and limitations of hyperlinks, jump links, hashtags, click-throughs, layered disclosures, icons, and other similar options?  How should these options be evaluated in terms of placement and proximity?
• How can short, effective, and accessible privacy disclosures be made on mobile devices?
• What does the research show about how consumers’ use of mobile and other devices can affect the effectiveness of disclosures on particular devices or platforms?  And what does it show about the relationship between how consumers use mobile devices and their understanding of disclosures and advertising displayed on mobile devices?  What does the research show about how consumers make decisions based on that information?  Is there specific research on the effectiveness of disclosures on mobile devices, including layered disclosures and icons, and, if so, what are the implications of that research for disclosures such as offer terms and privacy practices?

The Commission also invites parties to submit suggestions for topics of discussion or original research.  In particular, the Commission invites the submission of realistic examples and mock-ups that can be used for illustration and discussion at the workshop. Individuals and organizations may submit requests to participate as panelists and may recommend topics for inclusion on the agenda.

  The requests and recommendations should be submitted electronically to dotcomdisclosuresworkshop@ftc.gov. Prospective panelists should submit a statement detailing their expertise on the issues to be addressed and contact information no later than March 30, 2012. Panelists will be selected based on expertise and the need to include a broad range of views.

Paper submissions should reference the Dot Com Disclosures Workshop both in the text and on the envelope, and should be mailed or delivered to: Federal Trade Commission, Office of the Secretary, Room H-135 (Annex P), 600 Pennsylvania Avenue, N.W., Washington, DC 20580.  The FTC requests that any paper submissions be sent by courier or overnight service, if possible, because postal mail in the Washington area and at the Commission is subject to delay due to heightened security precautions. The workshop is free and open to the public.  It will be held on Wednesday, May 30, 2012, at the FTC Conference Center at 601 New Jersey Avenue, N.W., Washington, DC.  Pre-registration is not required.  Members of the public and press who wish to participate but who cannot attend can view a live Webcast at FTC.gov.

FTC extends RFC Due Date "Dot Com Disclosures" August 10

In 2000, the Federal Trade Commission first published “Dot Com Disclosures: Information About Online Advertising,” providing advice to businesses doing business online. A lot has changed since that time, and the FTC is in the process of updating this publication. This week the FTC announced that it is extending the deadline for comments on the revised publication to August 10, 2011.

From the original May 26th notice:

The staff of the Federal Trade Commission is updating “Dot Com Disclosures: Information About Online Advertising,” the guidance document that advises businesses how federal advertising law applies to advertising and sales on the Internet. [Download “Dot Com Disclosures” here.] The online world has changed dramatically since the original guidance was published in 2000, and the FTC is seeking public comment about how it should be modified to reflect these changes. [Read staff invitation to submit comments here.]

Since the FTC staff published Dot Com Disclosures, mobile marketing has become a reality, the “App” economy has emerged, the use of “pop-up blockers” has become widespread, and online social networking has emerged and grown popular. In seeking public comment on possible revisions to the guidance document, the staff is interested in the technical and legal issues that marketers, consumer advocates, and others believe should be addressed.

The 2000 guidance emphasizes that the same consumer protection laws apply to marketers whether they operate online or not. It illustrates how online marketers should provide clear and conspicuous disclosures of information that consumers need to make informed online purchasing decisions. It also discusses how the traditional factors used to evaluate whether disclosures are likely to be clear and conspicuous apply in the context of online advertising.

In the June 10, 2011 notice, the FTC stated "At the request of a stakeholder, the comment deadline has now been extended for 30 days until August 10, 2011." Interested parties can submit comments by clicking on the following: [Submit comment electronically by clicking here.]