1 The “contemporaneous” requirement was part of the definition of interception with respect to wire and oral communications prior to the enactment of the ECPA and was originally intended to keep answering machine tapes seized by police from falling within the scope of the law. Though the statute does not compel this interpretation, courts have generally determined the FWA requires interception happen “contemporaneously” with transmission of the information. ![]() However, the court found that the capture of keystrokes does not constitute “interception” as understood by the FWA. Rene argued that the defendants violated the FWA by intercepting her keystrokes as she typed her passwords on the computer. The FWA punishes a person who “intentionally intercepts” an “electronic communication.” 18 U.S.C. Fishers, claiming their actions violated the FWA, the SCA, and the Indiana Wiretap Act (IWA). The software allowed the defendants to obtain passwords for Rene's personal accounts, which they viewed, forwarded, and discussed amongst themselves. Fishers, Inc authorized plaintiff Lisa Rene to access her personal checking account and personal email from an office computer without disclosing to her that they had equipped the computer with keylogger software. In September 2011, the Southern District Court of Indiana heard the case of a woman whose privacy was violated through the use of a keylogger. The Limited Interpretation of the Federal Wiretap Act In a few cases courts have diverged from precedent and adopted this position. ![]() The surreptitious use of keyloggers should be subjected to wider regulation by state or federal law. It also creates a lack of clarity for employers and employees regarding what is considered lawful conduct. The conflict of interpretations between jurisdictions leaves people in many states vulnerable to invasive employer spying. Additionally, in the absence of a consensus about federal law prohibiting keyloggers, some courts have interpreted state statutes to protect the public from having their strokes stolen. Several recent cases have suggested a broader interpretation of the ECPA than what has previously been held. However, there is evidence that this may soon change. The Electronic Communications Privacy Act (ECPA), which includes the Federal Wiretap Act (FWA) and the Stored Communication Act (SCA), could potentially prevent keystroke theft, but thus far the protections it offers have not been extended to keyloggers. There is currently no federal law that has been interpreted to prohibit their surreptitious use. ![]() Managers argue that computer surveillance is important to ensure productivity, but alternative tools like website blockers, remote desktop access and time audits allow employers to determine whether an employee deviated from her task without risking the same breach of trust or employee humiliation associated with keyloggers.Īlthough keyloggers facilitate a major invasion of privacy, they are legal in many jurisdictions. Employers are using keyloggers more often in the workplace to oversee employees without their knowledge. These easy to use and inexpensive hardware or software devices record keystrokes and allow a monitor to access email, and other password-protected accounts of an unsuspecting typist. “CyberPatrol, ” “SniperSpy,” and “IamBigbrother” are the names of keyloggers that might be installed on your office computer. Commentary Notes First Amendment Written by Susanna Lichter
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