Sharing More Than You Thought: Facebook Cannot Assert the Party Exception to Avoid Liability Under the Wiretap Act

Abstract

On April 9, 2020, the United States Court of Appeals for the Ninth Circuit, in Davis v. Facebook, Inc. (In re Facebook), held that unauthorized third parties receiving simultaneous, direct copies of a party’s communication do not fall within the scope of the Party Exception of the Wiretap Act, 18 U.S.C. § 2510–2523. In doing so, the Ninth Circuit, based its holding on the legislative history and purpose of the Wiretap Act and reasoned that the Party Exception requires a narrow construction. Further, it held that to interpret the exception as inclusive of actors like Facebook risks eviscerating the scope of the Wiretap Act entirely. With its decision, the Ninth Circuit joined the First and Seventh Circuits, deepening the circuit split with the Third Circuit over the judicial interpretation of the Wiretap Act. This Comment argues that the Ninth Circuit’s understanding of the Act is correct because it protects the integrity of the Wiretap Act and adheres to the legislative intent to broadly protect individuals’ privacy.