A federal appellate court in Denver recently upheld summary judgment for an Internet service provider (ISP) defending class action allegations that it violated the Electronic Communications Privacy Act of 1986 (ECPA) by acquiring information about subscriber web-surfing activities as part of a program to tailor online advertisements for its subscribers.
Online advertisers and advertising firms, as well as web publishers and website hosts, will have just as much interest as communication carriers in the Tenth Circuit’s year-end decision, which solidifies a spate of recent district court decisions confirming the compliance of various online advertising platforms with state and federal privacy laws. The new decision is one of very few federal appellate court decisions construing ECPA’s application to online behavioral advertising, and distinguishes entities directly acquiring Internet traffic from businesses whose participation is less direct and therefore not subject to ECPA liability under an aiding and abetting theory. The decision also recognizes that by defining authorized “interceptions” to include ordinary-course of-business acquisitions of electronic communications, Congress immunized the ISP’s challenged activity from ECPA claims.
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