This note will argue that Google's new privacy policies violate the Wiretap Act as amended by the Electronic Communication Privacy Act. The Wiretap Act provides a cause of action against anyone who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication." The Wiretap Act, originally drafted to prevent eavesdropping on telephone conversations, requires interception of the contents of communication and not merely the circumstances surrounding the communication. As Google's practices have made it easier for users to characterize their searches as the "contents of communication," the Wiretap Act has become a plausible cause of action for consumers who are "injured" by Google's appropriation of their personal information.
Rethinking Online Privacy Litigation as Google Expands Use of Tracking: Giving Meaning to Our Online Browsing and the Federal Wiretap Act,
36 Hastings Comm. & Ent. L.J. 471
Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol36/iss2/8