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

Legal Issues

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.”