Use of spyware doesn’t pay in Florida divorce proceeding

Evidence obtained through wife’s use of spyware on husband’s computer to obtain information about extramarital affair not admissible in divorce proceedings.

Just in time for Valentine’s Day, we have a romantic case coming from Florida that interprets a provision of that state’s Security of Communications Act. The case originated in divorce court, and the appellate court considered whether evidence of a husband’s infidelity obtained through the use of a spyware program installed by the wife was properly excluded in the divorce proceedings. The court held that it was properly excluded from consideration.

After marital discord eruped between Husband and Wife, Wife installed a spyware program on Husband’s computer that captures screenshots which are saved on the hard drive for later review. Through these means, Wife discovered Husband’s online philandering with another woman.

After Husband discovered the spyware on his computer, he petitioned the divorce court to exclude the evidence Wife had obtained using the spyware. The court excluded the evidence, entered a final decree, and Wife appealed.

On appeal, the court affirmed that the evidence was properly excluded, because Wife had obtained it illegally under a provision of the Security of Communications Act that makes it illegal for a person to intentionally intercept wire, oral or electronic communications.

Wife asserted that the communications were not illegally obtained, arguing that by the time the communications appeared on the screen they were no longer in transit, and not subject to interception. The court acknowledged that “there is a rather fine distinction between what is transmitted as an electronic communication subject to interception and the storage of what has been previously communicated.” It went on to hold that “the evanescent time period” between the transmission of the communications and their appearance as visible text on the screen was not “sufficient to transform acquisition of the communications from a contemporaneous interception to retrieval from electronic storage.”

O’Brien v. O’Brien, — So.2d —, 2005 WL 322367 (Feb. 11, 2005).

KERACARE trademark diluted by registration of domain name KeraCare.com

The United States District Court for the Northern District of Illinois granted summary judgment in favor of a plaintiff who claimed that the defendant’s registration and use of fifteen domain names incorporating variations of plaintiff’s trademark KERACARE caused dilution of the mark.

Plaintiff Avlon owns the incontestable trademark registration for the mark KeraCare for hair care products. Defendant Robinson is in the hair care products industry as well, and does business under the name Sheldeez Hair Prouducts and Salon. Robinson registered at least fifteen domain names incorporating variations of Avlon’s mark, including www.keracare.com. From these sites, Robinson offered for sale hair care products made by both Avlon and Avlon’s competitors.

Avlon sued Robinson claiming, among other things, that Robinson’s incorporation of Avlon’s mark in his domain names diluted Avlon’s mark, in violation of Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c). (Dilution is defined in Section 45 of the Lanham Act, 15 U.S.C. § 1127 as “the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of (1) competition between the owner of the famous mark and other parties, or (2) likelihood of confusion, mistake, or deception.) Avlon moved for summary judgment on the dilution claim, and the court granted Avlon’s motion.

Robinson first argued that Avlon had failed to show the KeraCare mark is famous. The court disagreed, and found that the mark is famous. The court noted that Robinson’s actions in part betrayed the mark’s fame – if the mark was unfamiliar to the vast majority of shoppers, Robinson would not have registered at least fifteen variants of the word as domain names. The court also gave weight to the fact that Avlon’s mark was incontestable under Section 15 of the Lanham Act, 15 U.S.C. §1065. Finally, the court also gave weight to the fact that Avlon sells millions of dollars of KeraCare products annually, and that Robinson himself testified that the KeraCare line is one of four product lines that are “well known and respected in a marketplace ‘flooded’ with product lines.”

Robinson next argued that Avlon had failed to establish actual dilution of its mark as required by the Supreme Court’s decision in Moseley v. V Secret Catalogue, Inc. et al. 537 U.S. 418 (2003). The court was not persuaded by this argument. It looked to the portion of Moseley which states that “actual dilution can reliably be proved through circumstantial evidence–the obvious case is one where the junior and senior marks are identical.” Because Robinson’s domain names used Avlon’s exact marks, the court found that Avlon had shown actual dilution. The court noted that actual dilution was also supported by the fact that Robinson’s control over all possible variations of Avlon’s marks permitted him to decide what messages and goods are associated with such marks.

Avlon Indus. v. Robinson, 2005 WL 331561 (N.D.Ill. Feb. 8, 2005).

Webmaster not a “publisher” of defamatory comments made by third parties in users’ forum

An appeals court in New Jersey upheld the trial court’s dismissal of defamation claims against a community website forum operator, invoking an immunity provision of the Communications Decency Act of 1996.

This was a case of local politics gone bad. In 1999 defendant Moldow created a website featuring information about local government activities in the New Jersey town of Emerson. The site contained various features including a message forum where citizens could post messages anonymously.

After some time, certain anonymous visitors to the website began posting defamatory messages in the forum about various local elected officials, including plaintiffs Donato and Calogero. Plaintiffs filed suit against Moldow alleging defamation and other causes of action, on the theory that Moldow was liable for defamation as a publisher of the statements in his capacity as operator of the website.

The trial court dismissed the action against Moldow, finding that he was immune from liability under a provision of the Communications Decency Act of 1996 which provides that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” and a related “good samaritan” provision discussed below. The appellate court affirmed, and went through a three part analysis under the statute.

In the first part of the analysis the court confirmed that Moldow was both a provider and user of an interactive computer service, as to not be considered a publisher. He was a provider of an interactive computer service merely by providing a website, and was a user by virtue of being a customer of an ISP.

The second part of the analysis focused on whether Moldow’s actions in shaping the discussions on the message forum rendered him an “information content provider” and thus not covered under the statute’s immunity. For example, Moldow deleted certain offensive messages, gave guidelines for posting, and edited and re-posted certain messages to remove obscenities. The court reviewed a litany of decisions from other jurisdictions which had considered similar questions. In the end, the court determined that Moldow’s activities were nothing more than the exercise of traditional editorial functions and thus subject to the type of immunity that Congress intended under the Act.

The third and final part of the court’s analysis considered whether Moldow had acted in bad faith in his actions. The appellants had claimed that Donato’s alleged personal malice toward them made it such that his conduct was in bad faith and thus not protected by the Act’s immunity. As a supplement to the immunity provisions, the Act has a “good samaritan” provision which states that no provider or user of an interactive computer service is liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, filthy, excessively violent, harassing, or otherwise objectionable.” The court concluded that the good samaritan provision was enacted not to diminish the broad immunity, but to make sure that it was not diminished. Essentially, because the court had determined that Moldow’s actions were protected by the Act’s immunity, they could not have been done in bad faith.

Donato v. Moldow, 2005 WL 201121 (Ct. App. N.J., January 31, 2005)

Minnesota Federal court declines to exercise personal jurisdiction over Winnipeg website operator

In an action for defamation, copyright infringement and business interference, the U.S. District Court for the District of Minnesota declined to exercise personal jurisdiction over a website operator based in Winnipeg, Manitoba, holding that Minnesota’s long arm statute precluded such exercise as to the defamation claim, and that the Zippo and “effects” tests did not warrant exercise of personal jurisdiction as to the copyright and business interference claims.

The plaintiffs in this case were a religious organization and the owner of the copyright in the organization’s religious writings. Plaintiffs filed suit in Minnesota against a website operator located in Winnipeg, Canada, claiming that they were defamed through a website maintained by defendant, and that the defendant infringed the plaintiffs’ copyright and interfered with their business relations. The defendant moved to dismiss, claiming that he did not have sufficient contacts with Minnesota for the court’s exercise of jurisdiction over him. The court agreed, and dismissed the action.

The court concisely reviewed the standards it applies when determining whether to exercise personal jurisdiction over an out of state defendant. It covered the threshold questions of whether the facts presented satisfy the forum’s long arm statute and whether the court’s exercise of jurisdiction would be fair in accordance with due process.

There were two main components of the court’s analysis. It first analyzed the question of jurisdiction in relation to the defamation claim and then went on to answer the question of whether the defendant would be subject to personal jurisdiction in the copyright infringement and business interference claims.

In general, Minnesota’s long arm statute provides that a Minnesota court can exercise personal jurisdiction over an out of state defendant if that defendant is alleged to have committed and act outside of Minnesota which causes injury in Minnesota. There is a specific exception, however, when the cause of action lies in defamation. In this case, even though the website was created in Minnesota, the defendant was never in Minnesota for purposes of maintaining the website, and everything he did to maintain the site he did from his home in Canada. The court held that because the defendant’s “acts” in maintaining the site were committed in Winnipeg, where his computer was located, the plaintiffs could not establish that the court should exercise personal jurisdiction as to the defamation claim.

The court then considered whether it could exercise personal jurisdiction over the defendant as to the copyright infringement and business interference claims. The court applied the well-known Zippo test first articulated in the case of Zippo Mfg. Co. v. Zippo Dot Com, Inc. 952 F.Supp. 1119 (W.D.Pa. 1997). This test focuses on the nature and quality of commercial activity that an entity conducts over the Internet. The greater the amount of interactivity of a website, the more likely a court will determine it can exercise personal jurisdiction over the entity owning the website. In this case, there was no commercial activity on the site, and the interactivity of the site consisted only of a users forum and a guestbook. The court found that this was not sufficient to warrant exercise of personal jurisdiction under the Zippo test.

The analysis did not stop there, however. The court went on to apply the “effects” test, articulated in the case of Calder v. Jones, 465 U.S. 783 (1984). This test essentially provides that a court’s exercise of personal jurisdiction over an out of state defendant is proper if the defendant’s intentionally tortuous activity is specifically directed to the forum state and the plaintiff feels the “brunt of the harm” within the forum state. In the present case, the court determined that the plaintiffs did not pass the effects test, because the website was directed at the Brethren organization, and not specifically at Minnesota or its residents.

Bible & Gospel Trust v. Wyman, — F.Supp.2d —, 2005 WL 273162 (D.Minn. January 31, 2005).

No liability for Earthlink under the ECPA

In a decision handed down January 25, 2005, the United States Court of Appeals for the Second Circuit held that Earthlink did not violate the Electronic Communications Privacy Act,18 U.S.C. 2510 et seq., when it continued to receive email directed to a former customer’s account after service to that customer had been terminated.

The facts of this case go all the way back to 1997. Plaintiff Hall’s Earthlink service was terminated after Earthlink incorrectly concluded that he was sending spam from his account. Email sent to Hall’s erstwhile Earthlink account simply remained there, and after a few months’ time, Earthlink forwarded to Hall’s non-Earthlink account a batch of some 600 messages that had accumulated on Earthlink’s servers.

Because no good deed goes unpunished, Hall sued Earthlink alleging several causes of action, among them that Earthlink violated a provision of the Federal wiretap law, also known as the Electronic Communications Privacy Act (ECPA) which prohibits, among other things, the intentional interception of any electronic communication. Hall claimed that by continuing to receive the messages after the account closed, Earthlink “illegally intercepted” messages intended for him.

The district court disagreed with Hall, and found in favor or Earthlink, holding that Earthlink’s actions did not constitute an intentional interception. Hall appealed to the Second Circuit.

The Second Circuit upheld the district court’s decision in favor of Earthlink. In its opinion, the court elaborated on the reasons why Earthlink’s actions did not give rise to liability under the ECPA. The court emphasized a portion of the ECPA known as the “ordinary course of business exception,” which eliminates one’s liablity for eavesdropping whenever he or she uses a device in — you guessed it — the ordinary course of his or her business.

The important question, then, was whether collecting email in a former customer’s account was an activity that Earthlink did in the ordinary course of its business. Hall, of course, characterized Earthlink’s actions as “intentionally seizing” and tried to argue that such conduct would not fall in the ordinary course of business. Earthlink countered with evidence that it was its practice in 1997 to continue to receive and store e-mails on its servers after accounts were cancelled, and that it did not have the ability to bounce e-mail back to senders when messages were sent to a closed account.

Hall v. Earthlink Network, Inc., No. 04-0384-CV, 2005 WL 147139 (2d Cir, Jan. 25, 2005).

This is where it begins

InternetCases.com is a new weblog that will highlight some of the more interesting court cases dealing with issues relating to the Internet and new technologies.

About Me: I am an attorney in Chicago, Illinois, practicing in the areas of intellectual property and computer-related law. It is my goal — at least here in the beginning — to discuss one or two cases a week. As time goes on and I realize that it will be useful to write more or less, I will do so. Drop me a line at ebrown@internetcases.com.

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