702 F.3d 1245
10th Cir.2012Background
- Kirches sue Embarq in Kansas federal court for unlawful interception under ECPA during NebuAd test via NebuAd's UTA device.
- NebuAd tested online advertising by intercepting user data; Embarq installed the UTA and routed traffic through NebuAd's system.
- Embarq allegedly accessed NebuAd-derived data as an ISP, not as a NebuAd collaborator.
- District court granted summary judgment to Embarq: no interception occurred; ordinary-course-of-business exemption applied; no aiding-and-abetting liability.
- Court of appeals affirming: ECPA civil liability lacks aiding-and-abetting theory; Embarq’s access was ordinary ISP activity, not an interception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Embarq intercepted communications under ECPA | Kirches contend NebuAd intercepted contents via UTA. | Embarq had no access to NebuAd's collected contents; no interception by Embarq. | No interception by Embarq; no ECPA liability on this theory. |
| Whether ECPA civil liability extends to aiders and abettors | Kirches argue aiding-and-abetting liability should apply. | ECPA §2520 does not provide aiding-and-abetting liability. | Aiders/abettors not liable; no civil liability for Embarq as aider. |
| Whether ordinary-course-of-business exemption applies to Embarq's access | Kirches contend access was beyond ordinary ISP function. | Access occurred in ordinary course of providing Internet service. | Exemption applies; Embarq not liable. |
| Whether consent or privacy policy bars liability | Kirches relied on Embarq privacy policy/consent. | Consent/notice supplied by policy; not dispositive since no interception. | Consent not necessary to resolve; no interception anyway. |
Key Cases Cited
- Hall v. Earthlink Network, Inc., 396 F.3d 500 (2d Cir. 2005) (ordinary-course-of-business exception applies to ISP access to data)
- Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994) (no general civil aiding-and-abetting liability)
- Peavy v. WFAA-TV, Inc., 221 F.3d 158 (5th Cir. 2000) (civil liability for interception not extend to aiders and abettors)
- Stone v. INS, 514 U.S. 386 (1995) (significance of statutory amendments signaling change in meaning)