In re Pharmatrak, Inc. Privacy Litigation
329 F.3d 9
In the United States Court of Appeals for the First Circuit
Case Number 02-2138
Before Circuit Judge Lynch, Circuit Judge Bownes, and Circuit Judge Howard
Decided on May 09, 2003

Relevancy of the Case: Interpretation of the “consent” exception in the Electronic Communications Privacy Act of 1986

Statutes and Provisions Involved

• The Electronic Communications Privacy Act, 18 U.S.C. §§ 2511-2520
• The Computer Fraud and Abuse Act, 18 U.S.C. § 1030

Relevant Facts of the Case

• Pharmatrak sold a service called “NETcompare,” which accessed information about internet users and collected certain information for intra-industry website traffic and usage comparisons.
• Companies were empathic and said that they did not want any personal data. Pharmatrak assured them of the same but later was found to have reneged.
• The plaintiffs sued Pharmatrak and the pharmaceutical companies, asserting that they intercepted electronic communications without consent, violating the ECPA.
• The District Court entered summary judgment for the defendants on the basis that Pharmatrak’s activities fell within an exception to the statute where one party consents to an interception. The plaintiffs have appealed against the District Court’s judgment.

Prominent Arguments by the Counsels

• The defendant argued the only relevant inquiry is whether the pharmaceutical companies consented to use Pharmatrak’s NETcompare service, regardless of how the service eventually operated. Moreover, there was no interception because there were always two separate communications. One is between the web user and the pharmaceutical client, and the other is between the web user and Pharmatrak.

Opinion of the Bench

• The District Court has incorrectly interpreted the consent exception to the Electronic Communications Privacy Act. Considering all the facts and relevant data, Pharmatrak appears to have intercepted the communication under the statute.

Final Decision

• The court reversed the District Court’s judgment and remanded the case for further proceedings.

Parul Anand, an undergraduate student at the National Law University, Jodhpur, prepared this case summary during her internship with The Cyber Blog India in May/June 2022.