Digital Surveillance and The Scope of the Wiretap Act’s Party Exception


As society becomes increasingly dependent on the internet for economic, educational, and connectivity purposes, privacy interests become harder to protect. Privacy advocates and concerned consumers currently rely on Title I of the Electronic Communications Privacy Act—otherwise known as the Wiretap Act—to protect their online privacy rights. While the Wiretap Act has the potential to be a useful tool in privacy litigation, the Act was drafted well before the wide-spread use of the internet and pervasive data collection practices. The dated nature of the statute is evident in the Act’s “party exception,” an exception that permits a person to discreetly intercept electronic communications where that person is considered to be a “party” to the communications. Circuits have recently split on the scope of this exception. This Note offers an answer to the circuit split and argues that the party exception extends to parties that act surreptitiously, so long as they do not act with a criminal or tortious purpose. But this leads to troublesome results in an era where surveillance is ubiquitous and where some of the world’s leading companies have business models centered around data collection and targeted online advertising. The party exception offers too great a shelter for large corporate actors. Therefore, the Wiretap Act, in its current form, is insufficient to protect privacy interests against modern surveillance practices and the time has come for Congress to enact new legislation.


Privacy, Title I of the Electronic Communications Privacy Act, Wiretap Act, Internet, Party Exception, Surveillance, Data Collection, Targeted Online Advertising



Kathryn Wilson (Washington University School of Law in St. Louis)



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