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The federal government should clarify the definition of “interception” under Title I of the Electronic Communications Privacy Act (ECPA) and reconsider the damages requirement for private claims in the Computer Fraud and Abuse Act (CFAA) in light of the often non-economic nature of privacy harms.
A victim’s suffering is often not financial but emotional.
In the last category, few statutes have more potential than the ECPA. Patrick Leahy noted in 2013 was "no longer suited" to contemporary threats—courts have turned to a technologically unwieldy metaphor of "flight" to determine which interceptions occur “contemporaneously” with a message’s transmission and thus are covered by the statute.
ECPA was passed in 1986 as an amendment to the federal Wiretap Act, and, among other things, generally forbids the interception of electronic communications without the consent of a party to that communication. This definitional jig has meant webcam hacking victims are uncovered, with courts reluctant to take the sensible step of including webcam RAT spying under the act’s auspices.
An Aspen Way employee came into the Byrd’s house, alleging delinquency, and, at his door, showed Brian a webcam photo of himself playing poker. electronic privacy legislation, would seem to apply naturally to the RAT-enabled capture of webcam photographs, keystrokes, and screenshots, a district court judge in their case adopted a pre-trial finding that the photographs were not "intercepted" for the purposes of the statute.
Together, with political will and popular support behind them, change in these areas would empower the public to better respond to ratters—whether individuals or government agents—and improve the privacy of millions.* * *Electronic privacy law in the United States is guided by the overlap of the Federal Trade Commission, state law, criminal procedure, executive order, and federal statute.
Amending the CFAA’s damages requirement to take into account the type of harms suffered by ratting victims would offer more people the ability to gain relief under the act’s provisions.