Javier Luis v. Joseph Zang, 833 F.3d 619

Background

Plaintiff Javier Luis (Florida) exchanged private electronic communications with Catherine Zang (Ohio); Joseph Zang (Catherine’s husband) installed WebWatcher on Catherine’s PC and captured those communications.
WebWatcher, manufactured/marketed by Awareness Technologies, allegedly records keystrokes, emails, IMs and routes copies to servers maintained by Awareness for later review; Awareness also offers an “Alert Word” feature.
Luis sued Joseph, Awareness, and others; settled with all but Awareness and alleged violations of the federal Wiretap Act (18 U.S.C. §§ 2511, 2512, 2520), the Ohio Wiretap Act, and Ohio common law intrusion.
The district court granted Awareness’s Rule 12(b)(6) motion; the Sixth Circuit reviews de novo and accepts the complaint’s allegations as true (plaintiff was pro se).
The Sixth Circuit majority reverses the dismissal, holding Luis plausibly alleged: (1) Awareness intercepted communications under § 2511 by acquiring them contemporaneously with transmission, (2) Awareness violated § 2512 by manufacturing/marketing a device primarily useful for surreptitious interception and (3) Awareness is subject to civil suit under § 2520 where the manufacturer also played an active role in operation, and (4) parallel Ohio Wiretap Act and intrusion tort claims survive.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether WebWatcher’s capture qualifies as an "intercept" under § 2511 (contemporaneity requirement)	WebWatcher captures communications "as they are being written" and routes them "immediately" to Awareness’s servers, so acquisition was contemporaneous with transmission	An "intercept" requires contemporaneous acquisition; WebWatcher only records to storage for later review, so no contemporaneous intercept	An "intercept" requires contemporaneity; plaintiff’s allegations and marketing materials plausibly allege near real‑time acquisition and routin g to Awareness servers, so § 2511 claim survives dismissal
Whether Awareness itself "intercepted" (i.e., "acquired") communications or liability is limited to the user who installed the software	Awareness’s continued operation of WebWatcher (server receipt/storage/filtering) plausibly means Awareness acquired communications and thus intercepted them	Only the installer/user (Joseph) did the intercept; Awareness merely made/sold software and provided storage	Complaint plausibly alleges Awareness acquired communications by routing/capturing to its servers; Awareness may be liable under § 2511 at this stage
Whether a § 2512(l)(b) violation (manufacture/marketing of device primarily for surreptitious interception) supports a private civil action under § 2520	§ 2520 authorizes recovery from any person/entity that “engaged in that violation”; Awareness manufactured/marketed WebWatcher knowing its primary illicit use and actively operated servers, so it “engaged in” the violation	§ 2520 limits civil liability to those who intercepted, disclosed, or used the communications; mere manufacture/possession/sale of a device under § 2512 does not create a private cause of action	Court adopts a middle ground: § 2520 does not reach mere possession/sale alone, but a manufacturer who also plays an active role in operation/receipt of intercepted communications can be sued under § 2520; Luis’s § 2512-based claim survives dismissal
Whether Ohio Wiretap Act and Ohio common‑law invasion claims survive	Ohio statutes mirror federal law; Awareness’s alleged interception, use, and marketing/support of WebWatcher supports Ohio statutory and intrusion tort claims	Same arguments as federal: Awareness didn’t intercept; liability should attach to user only; pleadings insufficient	Court holds Luis plausibly alleged violations of Ohio Rev. Code § 2933.52(A)(1) and (A)(3) and sufficiently pleaded common‑law intrusion; state claims survive dismissal

Key Cases Cited

Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457 (5th Cir. 1994) (distinguishing electronic communications in transit from electronic storage; supports contemporaneity requirement for an "intercept")
Konop v. Hawaiian Airlines, 302 F.3d 868 (9th Cir. 2002) (electronic communications must be acquired during transmission to constitute an intercept)
United States v. Steiger, 318 F.3d 1039 (11th Cir. 2003) (adopts contemporaneity requirement; acquisition must be during "flight")
Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107 (3d Cir. 2003) (same: intercept requires contemporaneous capture)
United States v. Szymuszkiewicz, 622 F.3d 701 (7th Cir. 2010) (characterizes unlawful interception as catching a message "in flight")
DirecTV, Inc. v. Treworgy, 373 F.3d 1124 (11th Cir. 2004) (§ 2520 does not provide private action for mere possession of an intercepting device)
DirecTV, Inc. v. Robson, 420 F.3d 532 (5th Cir. 2005) (aligns with narrow reading of § 2520; possession/purchase alone generally not civilly actionable)
Peavy v. WFAA‑TV, Inc., 221 F.3d 158 (5th Cir. 2000) (interprets pre‑1986 § 2520 changes; discussed re procurement/§ 2520 scope)
Flowers v. Tandy Corp., 773 F.2d 585 (4th Cir. 1985) (seller of device without knowledge not civilly liable under earlier statutory framework)
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must be plausible, not merely speculative)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard; reasonable inferences required)
Nix v. O’Malley, 160 F.3d 343 (6th Cir. 1998) (Ohio Wiretap Act interpreted as comparable to federal law)