Websurfing and the Wiretap Act

[Commentary] The federal Wiretap Act is the major privacy law that protects privacy in communications. The Wiretap Act prohibits intercepting the contents of a communication without the consent of at least one of the parties to the communication. As enacted in 1968, the law was intended primarily to regulate wiretapping of telephone calls. In that context, the law is pretty clear: The law prohibits using a wiretapping device to tap the phone line without the consent of one of the participants on the call. But times have changed.

In 1986, Congress extended the Wiretap Act to the Internet. Applying the Wiretap Act to the Internet can be tricky because the Internet enables person-to-computer communications. The switch from person-to-person telephone communications to person-to-computer Internet communications creates two tricky interpretive problems. First, how do you identify “contents” of person-to-computer communications? And second, when is a computer a “party to the communication”?

[Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School]