Believe It Or Not, Password Protected Websites Have A Right To Privacy

from the so-says-the-law dept

Last year we wrote about a legal case that had the right ruling for the wrong reason. It involved a guy who had an anti-DirecTV website. On the site, he included a “terms of service” at the top of the page, saying that no one from DirecTV was allowed on the site. Someone from DirecTV visited the site, and so the guy sued. This is obviously a ridiculous lawsuit, and the lower court dismissed it pretty quickly. Unfortunately, the way they dismissed it suggested that password protected websites had no right to privacy — since they claimed that a website did not qualify as “electronic storage,” and therefore was not protected under the “Stored Communications Act.” That has worrisome implications, so the EFF joined with DirecTV to appeal that interpretation. The Appeals Court has now upheld the dismissal, but is using the EFF’s reasoning instead of the original problematic reasoning. Basically, this recognizes that a website is electronic storage, but unless the site is configured to block out the public (such as with a password), then it isn’t a violation if someone “unwanted” visits the site. As the court stated: “If by simply clicking a hypertext link, after ignoring an express warning, on an otherwise publicly accessible webpage, one is liable under the SCA, then the floodgates of litigation would open and the merely curious would be prosecuted.”

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Believe It Or Not, Password Protected Websites Have A Right To Privacy”

Subscribe: RSS Leave a comment
hmmm says:

does this mean that someone can set up a private tracker site for torrents, state that anyone from the IFPA, MPA, RIAA, and anyone not wanting to download for the pure enjoyment of free entertainment is NOT ALLOWED

then when they try to sue or take legal action, you sue them for using your site????


Chris says:

Re: a better way

Unfortunately the precedent of not suing people who don’t piss you off would undermine the suing of people who do piss you off. A lot of bands have to crack down on fans using their music (like in student films or on websites) because if they don’t they can’t get settlements when Nike or T-Mobile start to use their work.

mkam says:

Re: Re: a better way

My BS meter is going off.

I believe that you can selectivly sue. Do you have any references to any of these bands or to the fact that you can’t sue Nike because you decided not to sue ‘harry ballsack’ college productions?

Just wondering. Not sueing the little guy doesn’t put your music in the ‘public’ domain where it can be used commercially or not. I’m not a lawyer but this seems ridiculous.

Scott says:

Re: Re: Re: a better way

Actually this makes sense. If you try to sue T-Mobile for using your work, they are going to say “Here are 20 other instances where you did not care.” Now the key is commercial gain, a judge may overlook that fact if none of the sites used it to make money or promote in a manner that resulted in financial gain.

You can set precedent that can be used against you in court, I just don’t know how far it goes.

Tim Arview (user link) says:

Re: anyone know...

> I’m guessing hyperlink but only because if not then he’d still be suing, one should hope anyway.

Exactly. The original ruling said websites weren’t covered under the SCA, but did not specify anything about password protection. The re-interpretation says the ruling stands but only because his site wasn’t password protected.

Therefore, logically, his site must not have had password protection at the time. I’m sure he’s fixed it now.

Really, though, if you *give* someone a password, is it ethical to sue them for using it?

My guess is the new ruling is intended to draw a similarity between home invasion and unauthorized website viewing. That makes sense, but if I give someone a key to my house, can I sue him for going inside? Obviously, hacking is one way to gain unauthorized access, but that’s a given for litigation.

To continue with the analogy, the law says that landlords can’t go in tenants’ homes without their permission, even though the landlord has a key (not to mention the house itself *belongs* to the landlord). But it doesn’t really say anything about – for example – your next door neighbor.

Sure, they’ve gotten a little bit of clarification, but there’s still a lot of gray left.

cactus says:


your reading this means you agree to my terms of service. If you do not agree with these term please press the “any key” to continue living with your foot up your aurse. Not to mention all the web crawlers that index sites on search engines. So is this person going to sue google for crawling and indexing that site? If I live in the bad part of town(my website) Im going to put a door on my house with a key(login) or even a sign that says “go any further and I’ll shoot or go crying that the big bad dish man is looking at me”

Truthiness says:


Um, although I’m a big DirecTV fan. I got to side with the anti-DirecTv guy. He bascially had a EULA for using his site and it was violated. Either rule that all EULA are invalid and unenforciable or deal with this guy’s EULA. Just because he’s a person and not a company doesn’t mean he has no rights.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...