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Wiretapping the Internet: Analyzing the Application of the Federal Wiretap Act’s Party Exception Online

Washington and Lee Journal of Civil Rights and Social Justice
Fall 2022, Hayden J. Driscoll

The federal Wiretap Act—originally enacted to curtail the government’s unbridled use of wiretaps to monitor telephonic communications—was amended in 1986 to provide a private right of action, extending the Act’s Fourth Amendment-like protections to private intrusions. Since the advent of the internet, plaintiffs have attempted to predicate claims of unauthorized online privacy intrusions on the Wiretap Act. In response, defendants claim they are parties to the communications at issue and should be absolved of liability under the Act’s party exception. The federal circuit courts of appeal disagree on how the party exception applies in the internet context. This Note evaluates the courts’ differing conclusions and rationales and proposes two solutions, both of which share the common thread of applying heightened notice and consent requirements to online communications.

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