1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0196pp.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

J AVIER L UIS , Plaintiff-Appellant ,

v

.

J OSEPH Z ANG et al., Defendants , A WARENESS T ECHNOLOGIES , Defendant-Appellee

. ┐ │ │ │ │ │ │ │ │ │ │ ┘ No. 14-3601

Appeal from the United St ates District Court for the Southern District of Ohio at Cincinnati. No. 1:12-cv-00629—Susan J. Dlott, District Judge. Argued: April 27, 2016 Decided and Filed: August 16, 2016 Before: MERRITT, BATCHELDER, and GILMAN, Circuit Judges.

_________________ COUNSEL

ARGUED: Clayton L. Wiggins, VANDERBI LT APPELLATE LITIGATION CLINIC, Nashville, Tennessee, for Appellant. Bernard W. Wharton, MCCASLIN, IMBUS & MCCASLIN, Cincinnati, Ohio, for Appellee. ON BRIEF: Clayton L. Wiggins, Alistair E. Newbern, VANDERBILT APPELLATE LITIGATION CLINIC, Nashville, Tennessee, for Appellant. Bernard W. Wharton, MCCASLIN, IMBUS & MCCASLIN, Cincinnati, Ohio, for Appellee. Javier Luis, Tampa, Florida, pro se. GILMAN, J., delivered the opinion of th e court in which MERRITT, J., joined. BATCHELDER, J. (pp. 33–37), delivered a separate dissenting opinion. 

### >No. 14-3601 Luis v. Zang, et al. Page 2

_________________ OPINION

_________________ RONALD LEE GILMAN, Circuit Judge. Javier Luis, a resident of Florida, developed an online personal relationship with Ohio resident Catherine Zang. The relationship was apparently platonic, but Catherine’s husband, Joseph Zang, was nonetheless suspicious of his wife’s online activities. This caused Joseph to secretlyinstall a product known as WebWatcher on the computer used by Catherine in order to mon itor her communications. According to Luis, WebWatcher and its manufacturer, Awareness Technol ogies, Inc., surreptiti ously intercepted the emails, instant messages, and other communications that were sent between Luis and Catherine. Awareness then allegedly disclosed the communicatio ns to Joseph, who used them as leverage to divorce Catherine on favorable terms.
Upset by the capture and disclosure of his otherwise private communications, Luis filed suit against Joseph Zang, Awareness, and several othe rs. He eventually settled his claims against all the defendants other than Awareness. With respect to Awareness, Luis alleged that the involvement of its WebWatcher “spyware” in secretly recordi ng the communications at issue violated the federal Wiretap Act, the Ohio Wire tap Act, and Ohio common law. The district court concluded that Luis had failed to state a cause of action against Awa reness, leading to the present appeal. Because the distri ct court’s dismissal failed to ta ke into account the extent to which Awareness itself was allege dly engaged in the asserted violations, we REVERSE the judgment of the district court a nd REMAND the case for further pro ceedings consistent with this opinion.

I. BACKGROUND

A. Factual background
This case is on appeal from the district court’s order granting Awareness’s motion to dismiss for failure to state a claim under Rule 12(b )(6) of the Federal Rules of Civil Procedure. The account that follows is consequently base d on the facts as alleged in Luis’s amended complaint. See Boland v. Holder , 682 F.3d 531, 534 (6th Cir. 2012) (“Like a district courtNo. 14-3601 Luis v. Zang, et al. Page 3

considering a motion to dismiss in the first instan ce, we accept all facts a lleged in the complaint as true.”).
In early 2009, Luis made contact with Catherine Zang while participating in an online “Metaphysics” chatroom hosted by America Onlin e. Catherine at the time was married to Joseph Zang, but the marriage was not a happy one. This resulted in Luis reaching out to Catherine and “develop[ing] a car ing relationship with her.” The two never met in person, but they had “daily communications” that were sent via the internet between Luis’s home in Florida and the Zang residence in Ohio.
Joseph suspected that Catherine was communi cating with other men and decided to take steps to monitor Catherine’s act ions. He accordingly installed a software program known as “WebWatcher” on the computer used by Catherine. According to Luis’s complaint, this program intercepts electronic communications such as ema ils and instant messages in real time as the communications are sent. The program then contemporaneously forw ards the intercepted communications to servers maintained by Awareness in California, where the communications are stored for later review. A WebWatcher user such as Joseph may then access the servers and peruse copies of the communications at issu e at any time after the communications are intercepted and stored.
Joseph allegedly installed WebWatcher on th e computer used by Catherine sometime in early 2009, and he used the programto intercept emails and inst ant messages sent between Luis and Catherine for several months thereafter. He then used these communications as leverage to help his attorney secure favorable term s for a divorce from Catherine in 2010.
WebWatcher is manufactured and marketed by Awareness. The program allegedly “records all PC activity including emai ls, IMs, websites vi sited, web searches, Facebook/MySpace activity, and anything typed in real time.” According to Awareness’s advertisements, the WebWatcher program creates and stores a record of whatever is sent to or from the computer in question. The process occurs in “near real-time, even while [a] person is still using the computer.” This means that even if a computer user deliberately deletes or fails toNo. 14-3601 Luis v. Zang, et al. Page 4

save a communication, the WebWatcher program will record and save it for later retrieval from servers owned and maintained by Awareness.
The process also allows a WebWatcher user to access the communications from any location with an internet connection. Intercepte d communications, in other words, are stored in and made available to the user from Awareness’s servers, so a WebWatcher user can access the intercepted communications without physically acces sing the computers that were used to send or receive those co mmunications.
In addition, Awareness provides a service known as “Alert Word.” This software program scans the captured communications and m onitors them for certain keywords that may be of interest to the WebWatcher user. The program then takes screenshots of the relevant communications and highlights them so that the WebWatcher user can view the communications without sorting through material deem ed irrelevant to the user.
According to Luis’s complaint, Awareness markets the WebWatcher program as a means for suspicious spouses to illegally monitor thei r partners’ communications without their partners’ knowledge or consent. Luis sp ecifically alleges that Awaren ess “intentionally targets their product at spouses in their marketing campaigns —enticing them with the lure of finding out everything that goes on in the targeted computer’s private accounts.” (Empha sis in original.) This marketing strategy allegedly goes “far beyo nd” any ostensibly legitimate purpose (such as monitoring a child’s use of the Internet) that We bWatcher might otherwise have. Moreover, the marketing is allegedly similar to other companies’ marketing strategies that the Federal Trade Commission has in the past condemned as encourag ing illegal spying. Luis thus contends that Awareness “knew or should have known” that purchasers of WebWatch er “would use it for illegal purposes.”

B. Procedural background
Luis became aware of Joseph’s use of WebWat cher in the summer of 2010. He thereafter sued Awareness, Joseph, and several other defendant s in the United States District Court for the Middle District of Florida. In August 2012, that court transferred the case to the United States District Court for the Sout hern District of Ohio.No. 14-3601 Luis v. Zang, et al. Page 5

As relevant to the current appeal, the complaint asserts three causes of action against Awareness. It first alleges that Awareness intentionally intercepted Luis’s electronic communications, in violation of 18 U.S.C. § 2511 (part of the federal Wiretap Act). The complaint next alleges that Awareness violated 18 U.S.C. § 2512 (another part of the federal Wiretap Act) by manufacturing, marketing, sel ling, and operating a device that Awareness knew or had reason to know was to be used primaril y for the surreptitious in terception of electronic communications. Finally, the complaint assert s that Awareness violated Ohio state law by (1) intercepting and using his el ectronic communications within the meaning of Ohio’s Wiretap Act, and (2) invading his privacy within the meaning of the common-law tort.
Awareness moved to dismiss Luis’s complain t under Rule 12(b)(6) of the Federal Rules of Civil Procedure. It argued that (1) WebWatcher does not “intercept” communications as defined in the federal Wiretap Act, (2) Awareness cannot be held liable in a civil action because it did not “engage in” the alleged violation of the Act, and (3) Lu is’s factual allegations lacked enough detail to plead a claim under state law.
A magistrate judge was directed to prepare a Report and Recommendation (R&R) evaluating Awareness’s arguments. The R&R concl uded that Luis’s communications had in fact been “intercepted” as that term is used in the federal Wiretap Act, but the magistrate judge nonetheless recommended that Luis’s claims be di smissed. With respect to the claimed violation of 18 U.S.C. § 2511, the R&R c oncluded that Awareness itself did not “intercept” Luis’s communications because it was Joseph—not Awa reness—that installed the WebWatcher program on the computer used by Catherine. A nd with respect to the claimed violation of 18 U.S.C. § 2512, the R&R concluded that Awarene ss could not be held liable simply for manufacturing a product that others—such as Jo seph—used to violate the Wiretap Act. The R&R further determined that Luis failed to allege sufficient facts to support any of his state-law theories of liability. As a resu lt, the R&R concluded th at all claims against Awareness should be dismissed.
The district court adopted the R&R in June 2014 and subsequently dismissed all claims against Awareness. Luis now appe als, arguing that he has adequa tely pleaded all three of the claims described above.No. 14-3601 Luis v. Zang, et al. Page 6

II. ANALYSIS

A. Standard of review

We review de novo the district court’s decision to dismi ss Luis’s complaint under Rule 12(b)(6) of the Federal Rule s of Civil Procedure. See Kreipke v. Wayne State Univ. , 807 F.3d 768, 774 (6th Cir. 2015). To survive a motion to di smiss under Rule 12(b)(6), a complaint must state a claim to relief that ri ses “above the speculative level” and is “plausible on its face.” Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (internal quotation marks omitted). “A claim has facial plausibility when th e plaintiff pleads factual content that allows the court to draw the reasonable inference that th e defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). The complaint mu st therefore “contain either direct or inferential allegations respecting all material elements necessary for recovery under a viable legal theory.” Kreipke , 807 F.3d at 774 (internal quotation marks omitted).
In evaluating a motion to dismiss, we “mayconsider the complaint and any exhibits attached thereto, public records, it ems appearing in the r ecord of the case and e xhibits attached to defendant’s motion to dismiss so long as they are referred to in the comp laint and are central to the claims contained therein.” Id. (alterations and internal quotation marks omitted). We must accept the complaint’s well-pleaded factual allegatio ns as true, construe the complaint in the light most favorable to the plaintiff, and draw a ll reasonable inferences in the plaintiff’s favor. Bassett v. Nat’l Collegiate Athletic Ass’n , 528 F.3d 426, 430 (6th Cir. 2008).
Moreover, Luis was acting pro se when he filed the relevant complaint in this case. We hold such pro se pleadings “to le ss stringent standards than formal pleadings drafted by lawyers.” Williams v. Curtin , 631 F.3d 380, 383 (6th Cir. 2011) (internal quotation marks omitted). Luis’s pleadings should therefore be “liberally construed.” See id.No. 14-3601 Luis v. Zang, et al. Page 7

B. Luis sufficiently alleged facts supporti ng a cause of action against Awareness for illegal interception of an electronic comm unication, in violatio n of 18 U.S.C. § 2511

Luis’s first claim is that Awareness violated 18 U.S.C. § 2511. Th at section reads as follows: (1) Except as otherwise specifically provi ded in this chapter[,] any person who— (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wi re, oral, or electronic communication . . . shall be punished [by a fine or by imprisonment.] 18 U.S.C. § 2511(1)(a). Section 2511 thus crimin alizes the intentional interception of an electronic communication. See id. A separate section of the Wi retap Act then provides a private cause of action for persons who are vi ctimized by such criminal conduct: (a) In general.—Except as provided insection 2511(2)(a)(ii ), any person whose wire, oral, or electronic co mmunication is intercepted, di sclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate. 18 U.S.C. § 2520(a).
Luis’s first claim thus divides into two parts: one is the allegation that Awareness violated § 2511 by “intercepting” his communications, and the ot her is the allegation that, because Luis’s communications were so interc epted, he has the right under § 2520 to pursue a private cause of action fo r that violation. Awarene ss does not challenge the s econd part of Luis’s claim. In other words, Awareness concedes that if it is deemed to have intercepted Luis’s communications in violation of § 2511, then Luis is entitled to bring a private cause of action against Awareness under § 2520 to redress that violation.
But Awareness does contest the first part of Luis’s claim. It maintains that his claim falters because WebWatcher does not “intercept” electronic communications. Awareness asserts that the term “intercept” applies only to situations in which a device captures a communication “either before [the communication] reaches the intended recipient or c ontemporaneous with the transmission[,] but not after it reaches the destina tion where it is placed in electronic storage.” It contends that WebWatcher does not satisfy this contemporaneity requirement because the deviceNo. 14-3601 Luis v. Zang, et al. Page 8

ostensibly offers only the ability to “record[] various activities that occur” on a computer and then “review [those records] at a later date.” Put differently, Awareness maintains that its device involves no “contemporaneous” capture of communi cations because “the user of Web Watcher cannot view [a] communication[] at the time th e communication is transmitted.” As explained below, Awareness correctly argues that the Wire tap Act imposes a contemporaneity requirement on the term “intercept,” but Aware ness is incorrect in arguing th at Luis’s allegations about WebWatcher fail to satisfy this requirement.

1. The term “intercept” as used in 18 U.S.C. § 2511 requires that an acquisition of a communication o ccur contemporaneously with the transmission of the communication An “intercept” for purposes of the Wiretap Act is defined as “the aural or other acquisition of the contents of any wire, electron ic, or oral communication through the use of any electronic, mechanical, or other device.” 18 U. S.C. § 2510(4). The Act does not explicitly require that the acquisition of a communication occur contemporane ously with the transmission of the communication. See id. Nonetheless, courts interpre ting this language have uniformly concluded that an intercep t requires contemporaneity. See, e.g. , Fraser v. Nationwide Mut. Ins.
Co. , 352 F.3d 107, 113 (3d Cir. 2003), as amended (Jan. 20, 2004) (“Every ci rcuit court to have considered the matter has held that an ‘interce pt’ under the [Act] must occur contemporaneously with transmission.”).
The Fifth Circuit explained the basis for this requirement in Steve Jackson Games, Inc. v.
U.S. Secret Service , 36 F.3d 457 (5th Cir. 1994). In th at case, the court observed that the Wiretap Act originally applied only to wire communications and oral communications. Id. at 461. Congress then passed the Electronic Co mmunications Privacy Act (ECPA) in 1986, in which the Wiretap Act was amended to cover “electronic communications.” Id.
In doing so, Congress drew a distinction between “electronic communications” and “electronic storage.” Id. The former term is defined as “an y transfer of signs , signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectro nic or photooptical system.” 18 U.S.C. § 2510(12). In contrast, “electronic storage” is defined as “(A) any temporary, intermediate storage of a wire orNo. 14-3601 Luis v. Zang, et al. Page 9

electronic communication incidental to the electr onic transmission thereof,” and “(B) any storage of such communication by an electronic comm unication service for purposes of backup protection of such communication.” Id. § 2510(17).
The term “intercept,” as noted above, applie s only to electronic communications, not to electronic storage. See id. § 2510(4). Applying this definition of intercept to the above-quoted definition of electronic communication thus means th at the term intercept applies solely to the transfer of electronic signals. The term does not apply to the acquisiti on of electronic signals that are no longer being transferred.
This gives rise to the contemporaneity requirement. Once the transmission of the communication has ended, the communication ceases to be a communi cation at all. The former communication instead becomes part of “electronic storage.” And at that point a person cannot “intercept” the former communication because the term intercept, as noted above, does not apply to electronic storage. Interception must thus occur contemporaneously with the transmission of the communication; it must, in other words, catch the communication “in flight” before the communication comes to rest and ceases to be a communication. See Steve Jackson Games , 36 F.3d at 461-62 (“Congress’ use of the word ‘t ransfer’ in the definition of ‘electronic communication’, and its omission in that definiti on of the phrase ‘any electronic storage of such communication’[,] . . . reflects thatCongress did not intend for ‘inter cept’ to apply to ‘electronic communications’ when those communications are in ‘electronic storage’.”); see also United States v. Szymuszkiewicz , 622 F.3d 701, 704 (7th Cir. 2010), as amended (Nov. 29, 2010) (concluding that “catching the messa ge ‘in flight’” constitutes an “unlawful interception”).

This distinction between electronic communi cations and electronic storage is not an accident of statutory drafting. When Congress enacted the ECPA, it specifically differentiated between communications in transit and communications in storage. In part icular, Title I of the ECPA prohibits intentionally intercepting elect ronic communications, whereas Title II of the ECPA prohibits gaining unauthorized access to st ored communications. See Steve Jackson
Games , 36 F.3d at 459. Title I, moreover, imposes certain procedural requirements on lawenforcement officers who wish to investigate crimes by intercepting el ectronic communications, whereas Title II implements different procedural requirements for law-enforcement officers whoNo. 14-3601 Luis v. Zang, et al. Page 10

wish to investigate crimes by accessing electronic storage. Id. at 463. Finally, Title I limits the types of crimes that can be investigated thro ugh the monitoring of el ectronic communications, but Title II contains no such limit on the types of crimes that can be investigated through access to stored communications. Id.

These distinctions between T itle I and Title II of the ECPA show that Congress clearly meant to differentiate between communications and storage. Th e contemporaneity requirement thus plays a crucial role in effectuating congres sional intent. If the communication is acquired contemporaneously with its transmission, then an “i ntercept” has occurred and Title I applies; in contrast, if the communication is not acquired contemporaneously with its transmission, then “storage” has been accessed and Title II applies. So even though the definition of “intercept” does not explicitly require that an acquisition be contemporaneous with transmission, see 18 U.S.C. § 2510(4), the contemporaneity requirementplays a key role in effectuating the design of the ECPA.

All of the circuit courts that have considered the issue have therefore followed Steve Jackson Games and have concluded, like the Fifth Circuit, that the acquisition of a communication must be contemporaneous with its transmission in order fo r an “intercept” to

occur. See Fraser v. Nationwide Mut. Ins. Co. , 352 F.3d 107, 113 (3d Cir. 2003), as amended (Jan. 20, 2004) (“Nationwide argues that it did not ‘intercept’ Fr aser’s e-mail within the meaning of Title I because an ‘intercept’ can only occur c ontemporaneously with transmission . . . . [W]e agree with Nationwide.”); United States v. Steiger , 318 F.3d 1039, 1048-49 (11th Cir. 2003) (“The Fifth and Ninth Circuits’ reasoning is pe rsuasive and we hold that a contemporaneous interception— i.e. , an acquisition during ‘flight’—is require d to implicate the Wiretap Act with respect to electronic communications.”); Konop v. Hawaiian Airlines, Inc. , 302 F.3d 868, 878 (9th Cir. 2002) (“We ther efore hold that for a website . . . to be ‘intercepted’ in violation of the Wiretap Act, it must be acquired during transmissi on, not while it is in el ectronic storage.”). But see United States v. Councilman , 418 F.3d 67, 79-80 (1st Cir. 2005) (casting doubt on the contemporaneity requirement, but ultimately conc luding that the court “need not decide that question” on the facts of the case before it).No. 14-3601 Luis v. Zang, et al. Page 11

District courts in the Sixth Circuit have al so adopted the contemporaneity requirement. See, e.g. , Garback v. Lossing , No. 09-CV-12407, 2010 WL 3733971, at*2 (E.D. Mich. Sept. 20, 2010) (“[Courts] agree that the term intercept encompasses only acquisitions contemporaneous with transmission. . . . [T]he Court finds this reasoning persuasive and adopts it here.” (emphasis and internal quotation marks omitted)); Cardinal Health 4 14, Inc. v. Adams , 582 F. Supp. 2d 967, 979-80 (M.D. Tenn. 2008) (“The Th ird, Fifth, Ninth, and Eleven th Circuits all agree that, for a communication to be ‘inter cepted’ under the [Wiretap Act] , that communication must be acquired during the ‘flight’ of the communication. . . . The reasoning from the multiple circuit courts discussed above is sound . . . .”).
Our court has not yet decided precisely when an “intercept” occurs under the Wiretap Act. In light of the above discussion, howe ver, we conclude that the contemporaneity requirement is both (1) consistent with the stru cture of the ECPA, and (2 ) consistent with the interpretation of the Act adopted by every circuit to have ruled on the issue. We therefore hold that, in order for an “intercept” to occur fo r purposes of the Wiretap Act, the electronic communication at issue must be acquired contem poraneously with the transmission of that communication.

2. Luis’s complaint sufficiently alleges that Awaremess (via WebWatcher) acquires communications in a manner that is contemporaneous with their transmission For the reasons explained above, Luis’s clai m that Awareness intercepted his electronic communications requires him to establish th at Awareness acquired those communications contemporaneously with their transmission. Luis’s complaint must theref ore allege facts that, when accepted as true, give rise to a reasona ble inference that Awareness contemporaneously acquired the communications. See Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Awareness argues that Luis’s complaint fails to do so because (1) the complaint contains no specific allegations that WebWatcher contemporaneously captures communications, and (2) even if there are such allegations, those allegations are belied by an affidavit submitted by Awareness’s Chief Executive Officer (CEO). Neither contention has merit.No. 14-3601 Luis v. Zang, et al. Page 12

a. Allegations of contemporaneous acquisition
In support of his illegal-intercept claim, Luis attached to his complaint various marketing materials that describe the features of a product called WebW atcher. As noted above, we may appropriately take account of such attachments. See Kreipke v. Wayne State Univ. , 807 F.3d 768, 774 (6th Cir. 2015) (“In reviewing a motion to dismiss, the Court may consider the complaint and any exhibits attached thereto . . . .” (alteration and internal quotation marks omitted)). Awareness, however, argues that the marketing materials in this case cannot be considered because they do not identify the sour ce of the product. As stated by Awareness, the complaint contains “no allegation that they conc ern the product” that Joseph allegedly installed on the computer used by Catherine. It adds th at “Luis uses [the] unveri fied marketing materials to form the basis of his Wiretap Act claims yet never makes the specific allegation that these marketing materials have any connection to th e product used by Joseph C. Zang.” Awareness therefore asks us to ignore these materials, main taining that, in their absence, Luis’s complaint lacks enough factual matter to state a valid claim.
We are not persuaded. Luis’s complaint (1) specifically alleges that Awareness intercepted his communications using an electronic device calle d WebWatcher, (2) includes as attachments various marketing materials that de scribe the features of an electronic device unequivocally called WebWatcher, and (3) specifically refers to those marketing materials when describing the way in which Awareness’s device ope rates. Thus, regardless of whether the complaint includes a specific allegation that the at tached marketing materials refer to the same device identified in the body of the complain t, the only “reasonable inference” under these circumstances, see Iqbal , 556 U.S. at 678, is that they do.

Awareness is of course correct that some possibility exists that the marketing materials might refer to another device carrying the trademark “WebWatche r” that is unaffiliated with Awareness’s own WebWatcher. This argument, how ever, is far-fetched at best, and the more “plausible inference,” see id. at 682, is that the materials do in fact apply to Awareness’s WebWatcher that Joseph allegedly used. These materials thus help illuminate the way in which WebWatcher allegedly intercepted Luis’s communications.No. 14-3601 Luis v. Zang, et al. Page 13

In addition, Luis at this point in the litigation need push his claim past only the “speculative level.” See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (“Factual allegations must be enough to raise a right to relie f above the speculative level . . . .”). Hence, even if there exists some minimal doubt about the rela tionship between Awareness’s WebWatcher and the WebWatcher marketing materi als attached to the complaint, that doubt, standing alone, is not enough to ig nore the materials. This is es pecially true because we must liberally construe Luis’s pro se complaint, see Williams v. Curtin , 631 F.3d 380, 383 (6th Cir. 2011), with the result that we will grant Luis the benefit of any doubt and conclude that, for the purposes of the current appeal, the marketing mate rials do in fact apply to the WebWatcher at issue.
We next consider whether the marketing ma terials and Luis’s accompanying allegations contain factual content sufficient to support a reasonable inference that Awareness, via WebWatcher, acquired Luis’s electronic comm unications contemporan eously with their transmission. Two allegations in the complaint suppor t this inference. First, Luis alleges that the communications at issue “were not originally stored on the computer’s hard drive.” The communications were instead acquired by Awa reness “as [they were] being written and communicated between senders and recipients.” This allegation directly supports the proposition that the communications were still “in f light” for the purposes of 18 U.S.C. § 2511. See United States v. Szymuszkiewicz , 622 F.3d 701, 704 (7th Cir. 2010), as amended (Nov. 29, 2010) (noting that “catching the message ‘in f light’” constitutes an “unlawfu l interception” under § 2511); United States v. Steiger , 318 F.3d 1039, 1048-49 (11th Cir. 2003) (“[W]e hold that a contemporaneous interception— i.e. , an acquisition during ‘flight’— is required to implicate the Wiretap Act with respect to electronic communications.”).
Second, Luis alleges that “W ebWatcher immediately and instantaneously rout[e]s the intercepted communications to their [i.e., Awareness’s] server s located in California.” (Emphasis in original.) This allegation dir ectly supports an inference of contemporaneous interception because, if WebWatcher does in fact “immediately and instantaneously ” copy and send communications “as [they are] being writte n,” then the acquisition of the communications likely occurs before the communicati ons have come to rest in elect ronic storage. In turn, thisNo. 14-3601 Luis v. Zang, et al. Page 14

allegation supports a reasonable infe rence that the communications ha ve in fact been intercepted for the purposes of § 2511. See Steve Jackson Games, Inc. v. U.S. Secret Serv. , 36 F.3d 457, 461-62 (5th Cir. 1994) (drawing a distinc tion between (1) acquiring an electronic communication, which is an intercept, and (2) accessing electronic storage, which is not).
The marketing materials attached to Luis’s complaint support this conclusion. As Luis notes, the materials state that WebWatcher le ts its users review a person’s el ectronic communications “in near real-time, even while the person is st ill using the computer.” The materials further note that any deviation from real-time monitoring results not from delays regarding when the communications are acquired, but from variations in “the Internet connection speed of the computer being monitored.”
This near real-time monitoring is significant. If a WebWatcher user can in fact review another person’s communications in near real time, then WebWatcher must be acquiring the communications and transferring them to Awaren ess’s servers as soon as the communications are sent. The program, in other words, does notwait for the communications to be stored; instead, the program as described captures a nd reroutes the communi cations so that a WebWatcher user can review the communications at nearly the same time as they are being transmitted.
In addition, the marketing materi als state that “[e]ven if a doc ument is never even saved, WebWatcher still records it.” This feature indicates that WebWatcher does not wait for electronic communications to be sa ved in a computer’s electronic storage. Rather, the product records the communications as th ey are being sent, without rega rd for whether a copy is ever placed in the storage of the affected computer. This aspect of WebWach er’s operations thus implies that the alleged acquisition of Luis’s communications indeed occurred while the communications were still “in flight.” See Szymuszkiewicz , 622 F.3d at 704. And this allegation, in connection with the other al legations described above, supports a reasonable inference that Luis’s communications were in fact “intercepted” under 18 U.S.C. § 2511.
Nor do other allegations in the complaint unde rmine this conclusion. At oral argument, an issue was raised about the effect of the comp laint’s later reference to “oral” communications.No. 14-3601 Luis v. Zang, et al. Page 15

Paragraph 98 of the complaint, for instance, states that “Defendants, and each of them,” violated the Wiretap Act because they “intentionally in tercepted . . . oral communication[s],” or “intentionally disclosed . . . oral communication[s],” or “intentiona lly used . . . the contents of oral communication[s].” Thes e allegations regarding oral co mmunications, the argument goes, are inconsistent with Luis’s basic claim that his electronic communicatio ns—such as emails and instant messages—were intercepted by Awareness, w ith the result that Luis’s claims purportedly do not state a plausible basis for relief.
We respectfully disagree. Although Paragraph 98 does refer to oral communications, that paragraph also “restates and re-alleges the alle gations set forth” in the complaint’s preceding paragraphs. And in those paragraphs, Lu is specifically alleges that the “listed defendants . . . violated the fe deral wiretap law . . . when electronic communications originating from Plaintiff’s computer located in Florid a[] were intercepted in transmission using WebWatcher.” (Emphasis added.) Luis then adds that the electronic communications sent between Luis and Catherine were intercepted wh en WebWatcher sent those communications to Awareness’s servers in California. The complaint thus in fact alleges that Luis’s electronic communications were intercepted by Awareness, withthe result that the references to oral communications later in the complaint do not def eat the conclusion that Luis has stated an adequate claim under 18 U.S.C. § 2511.

b. The affidavit from Awareness’s CEO

Awareness resists the above conclusion that an intercept occurred by relying on an affidavit submitted by its CEO, Brad Miller. This affidavit was executed in August 2012 and is attached to Awareness’s motion to dismiss. Mill er states in the affidavit that, after being installed on a computer, WebWatch er “records various activities . . . such as e-mails sent and received, websites visited, keystrokes typed and transcripts of online chats.” This recorded content is then “sent to an online account,” from which a WebWatcher user may access the material at a later date. According to Miller , a WebWatcher user “cannot view communications at the time a communication is transmitted.”No. 14-3601 Luis v. Zang, et al. Page 16

This purported lack of real -time monitoring is important, Awareness maintains, because it allegedly shows that any acquisition of communications is not contemporaneous with the communications’ transmission. Awarene ss thus urges that Miller’s affidavit be read as firmly establishing that no contemporaneous acquis ition—and hence no intercept—occurred in this

case. This argument is unpersuasive for two reas ons, the first procedural and the second substantive. Procedurally, Awareness is not entitled to rely on affida vits at this stag e of the case. A court evaluating a motion to dismiss may, as not ed above, consider “the complaint and any exhibits attached thereto, public records, items appearing in the record of the case a nd exhibits attached to defendant’s motion to dismiss so long as they are referred to in the complaint and are central to the claims contained therein.” Kreipke v. Wayne State Univ. , 807 F.3d 768, 774 (6th Cir. 2015) (alterations and inte rnal quotation marks omitted). Miller’s affidavit, although attached to Awareness’s motion to dismiss, is pl ainly not “referred to in the complaint.” The affidavit therefore does not fall within the categories of documents that may be considered at this point in the litigation. See id.
Rule 12(d) of the Federal Rules of Civil Proc edure confirms this conclusion. That rule provides that if, “on a motion und er Rule 12(b)(6) or 12(c), ma tters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” The Miller affidavit is a “matter[] outside the pleadings,” so the district court had the option of either exclud ing the affidavit or c onverting Awareness’s motion to one for summary judgment. See Dayco Corp. v. Goodyear Tire & Rubber Co. , 523 F.2d 389, 392 (6th Cir. 1975) (“It seems clear then, that if a ffidavits are filed with the district court, the court must proceed under Rule 56 unless the court d ecides to exclude the affidavits.”). Nothing in the record suggests that the district court pr oceeded under Rule 56, so the Miller affidavit is not a proper basis on whic h to resolve Awareness’s motion to dismiss. See id. ; see also Tackett v. M & G Polymers, USA, LLC , 561 F.3d 478, 488 (6th Cir. 2009) (“ Because the district court’s ruling was not the functional equivalent of a Rule 56 ruling, we decline the Defendants’ invitation to base our ruling on Rule 56. Therefore, we will not consider matters extrinsic to the pleadings . . . .”).No. 14-3601 Luis v. Zang, et al. Page 17

Moreover, even if we were to consider Mill er’s affidavit, the substance of Awareness’s argument is lacking. The affidavit states thatWebWatcher “records various activities” on a computer and then sends those records to serv ers maintained by Awareness. But the affidavit does not specify how or when WebWatcher act ually creates the records of the affected computer’s activities. The affidavit therefore do es not foreclose the possibility that WebWatcher acquires electronic communications before they co me to rest in electronic storage. In other words, the acquisition might still be contempor aneous with the communications’ transmissions.

And even if Miller is correct that a WebWat cher user “cannot view communications at the time a communication is transmitted,” that assertion does not necessarily undermine Luis’s allegations. Luis claims that Awareness itself illegally intercepted his communications, and he specifically alleges that Awareness —through WebWatcher—“immediately and instantaneously rout[e]s the intercepted communications to their servers located in California.” (Emphasis in original.) Hence, even if a WebWatcher user cannot obtain real-time access to the communications, the possibility remains that Awareness itself acquires the communications while they are still in transit. Any potential delay in access to the communications for a WebWatcher user therefore does not preclude a finding that Awareness itself acquires the communications in a manner contemporane ous with their transmission.
For the above reasons, neither Awareness’s ar guments about the complaint’s allegations nor its reliance on its CEO’s affida vit is persuasive. We therefor e reject Awareness’s assertions with respect to Luis’s claim under § 2511.

3. The district court’s erroneous conclusion
In ruling on Awareness’s motion to dismiss, the district court largely agreed with the above analysis and concluded that Luis’s co mmunications had been intercepted. The court nonetheless granted Awareness’s motion to di smiss Luis’s § 2511 claim on the ground that “[Awareness] itself cannot be deemed to have ‘int ercepted’ any of Plain tiff’s communications.” Instead, the court attributed liab ility for the intercept solely to Joseph, the WebWatcher user.

Where the district court erred was in failing to recognize that Luis alleges not only that Awareness manufactures and sells WebWatcher , but that, once installed on a computer,No. 14-3601 Luis v. Zang, et al. Page 18

WebWatcher automatically acquires and transmits communications to servers that Awareness owns and maintains. The allege d intercept of a communication thus occurs at the point where WebWatcher—without any active input from the user—captures the communication and reroutes it to Awareness’s own servers. Construing these allegations liberally, as we must under Williams
v. Curtin , 631 F.3d 380, 383 (6th Cir. 2011), the complaint supports an inference that Awareness itself—not simply the WebWatcher user—“acquire s” the communications by rerouting them to servers that it owns and controls. That, in turn, suggests that Awareness itself is responsible for the alleged intercept. See 18 U.S.C. § 2510 (defining “intercept” as the “acquisition” of a communication). Put differently, the complaint’ s focus on Awareness’s continued operation of the WebWatcher program—even after that program is sold to a user—convinces us that Luis has plausibly pleaded that Awareness in tercepted his communications.
And that gives rise to a plausible claim for relief. This is because Awareness, as noted above, does not contest the proposition that if Awareness itself is deemed to have violated § 2511 by intercepting Luis’s communications, th en Luis may sue Awareness under § 2520 to redress that violation. For the reasons explained above, we conc lude that Luis ha s indeed alleged enough facts to reasonably infer that Awarene ss intercepted his communications. Luis may therefore proceed with his private cause of ac tion on the basis of Aware ness’s alleged violation of § 2511.
The dissent disputes our conclusion on the ground that Luis “simply does not allege that Awareness was the one intentionally doing th e intercepting.” Dissenting Op. 33. Its grammatical basis for this critique stems from the statement in the complaint that “WebWatcher . . . routs the intercepted communica tions to their servers” to be stored and analyzed for “their subscribers.” Id. at 2. The dissent conc ludes that there is no pl ausible connection between Awareness and the subject of the pronoun “their.” See id.
To the contrary, paragraphs 12 and 96 of the co mplaint specifically allege that Awareness (1) manufactures WebWatcher, (2) conducts “all marketing” for WebWat cher, and (3) is the “parent company” of WebWatcher. Hence, when Luis alleges that “Web Watcher . . . routs the intercepted communications” to “their” servers for “their” subscribers, the most plausible inference is that the word “their” applies to bo th WebWatcher and Awareness. Such a “plausibleNo. 14-3601 Luis v. Zang, et al. Page 19

inference” is all that is required to survive a motion to dismiss, see Iqbal , 556 U.S. at 682, so the dissent’s argument does not persuade us that Luis’s complaint is deficient.
C. Luis sufficiently alleged facts supporti ng a cause of action against Awareness for manufacturing, marketing, selling, and opera ting a wiretapping device in violation of 18 U.S.C. § 2512(1)(b) The second claim that Luis pursues on appe al is that Awareness violated 18 U.S.C. § 2512(1)(b), and that this violation gives rise to a private cause of action for a party in Luis’s circumstances. Section 2512(1)(b) reads as follows: Except as otherwise specifically provide d in this chapter, any person who intentionally . . . (b) manuf actures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or ha ving reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications . . . shall be fined under this title or imprisoned not more than five years, or both. Luis’s complaint plainly alleges facts that support a reasonable inference that Awareness violated this section. First, Luis claims that Aware ness is the manufacturer of WebWatcher, a device specifically designed to surrepti tiously “intercept[] communications” such as those that were electronically transmitted between Luis and Cath erine. Second, Luis claims that Awareness markets WebWatcher as a means for one spouse to illegally monitor the communications of another spouse in a way that goes “far beyond” any legitimate purpose that WebWatcher might have. These allegations easily support an in ference that Awareness ma nufactures a device “knowing or having reason to know” that the device is “primarily useful for . . . the surreptitious interception of . . . electronic communications.” The complaint therefore adequately alleges a violation of 18 U.S.C. § 2512(1)(b).
This leads to the question whether Luis can sue for that violat ion. Section 2512(1)(b) itself does not allow for such a suit because it provides only that the violator will be “fined . . . or imprisoned.” Luis’s private cause of action fo r such a violation thus depends on the proper interpretation of 18 U.S.C. § 2520.
Section 2520, as noted previously, states that“any person whose wire, oral, or electronic communication is intercepted, disclosed, or intenti onally used in violation of [the Wiretap Act]No. 14-3601 Luis v. Zang, et al. Page 20

may in a civil action recover from the person or en tity . . . which engaged in that violation such relief as may be appropriate.” For the reasons explained earlier, Luis has adequately alleged facts supporting an inference that he is a “person whose . . . electronic communication [was] intercepted . . . in violati on” of the Wiretap Act. See Part II.B. above. Luis is accordingly entitled to recover from the “person or entity . . . which engaged in thatviolation.” The sole question in assessing Luis’s § 2512(1)(b) claim is therefore whether Awareness’s alleged manufacture, marketing, sale, a nd operation of WebWatcher caus ed it to be “engaged in that violation” of the Wiretap Act when Luis’s communications were intercepted.
Awareness argues that manufacturing an el ectronic device does not amount to such engagement within the meaning of § 2520. It observes that § 2520 pr ovides recovery for a plaintiff whose communication is “intercepted, disclosed, or in tentionally used,” which it contends should limit liability to those defend ants who actually initiate the interception, disclosure, or intentional use at issue. Because manufacturing an electroni c device is different than “intercepting, disclosing, or intentionally using” a co mmunication, Awareness argues that § 2520 provides no private cause of action against a manufacturer that viol ates § 2512(1)(b).
Luis counters that Awareness’s interpretation i gnores the plain language of the statute. If Congress had meant to restrict li ability to only those persons or entities who make the specific decision to “intercept, disclose , or intentionally use” a co mmunication, then Congress would have used those terms in defining the class of defendants subject to suit under § 2520. But as Luis notes, Congress eschewed that route. C ongress instead chose to impose liability on any person or entity that “engaged in” the inter ception, disclosure, or intentional use of the communication in question. Stated differently, Lu is contends that Congress’s definition of the class of defendants as those who “engage[] in” certain Wiretap Act violations is broad enough to include those entities—such as Awareness —that allegedly violate § 2512(1)(b) by manufacturing and remaining invol ved in the operation of a device that is primarily used to commit such violations.
Courts that have previously addressed th ese arguments have come to inconsistent conclusions. On the one hand, a number of dist rict courts have adop ted a broad reading of § 2520 by concluding that the section gives rise to a privat e cause of action against anyone whoNo. 14-3601 Luis v. Zang, et al. Page 21

violates the Wiretap Act, regardless of whether that violation was specifically an intercept, disclosure, or use of a communication. See, e.g. , DIRECTV, Inc. v. Dougherty , No. 1:02-CV05576, 2003 WL 24046760, at *2-3 (D.N.J. Oct. 8, 2003) (concluding that “[a]nyone who violates a provision of the ECPA is a potential defe ndant,” and describing this conclusion as “the majority position” and “the better view”); see also DIRECTV, Inc. v. Kitzmiller , No. CIV.A. 03- 3296, 2004 WL 692230, at *4 (E.D. Pa. Mar. 31, 2004) (agreeing with Dougherty that “anyone who violates a provision of th e ECPA is a potential defendant” and stating that “this newlydeveloped majority view is the better approach”). These courts, for example, have imposed civil liability for simply possessing a wiretapping device in violation of § 2512(1)(b), even though such possession, standing alone, does not involve the intercept, disc losure, or use of a communication. See Dougherty , 2003 WL 24046760, at *2 (“[T]he recently developed majority view is that § 2520(a) does allo w for the recovery of damage s against one who possesses an intercepting device.”).
On the other hand, two of our sister circuits have disagreed with the conclusion reached by cases such as Dougherty and Kitzmiller . These circuits hold that § 2520 provides a cause of action against only those defendants whose violation of the Wiretap Ac t consists of an intercept, disclosure, or intentional use of a communication. Other violations, such as the simple possession of a wiretapping device, do notgive rise to civil liability. See DirecTV, Inc. v. Treworgy , 373 F.3d 1124, 1127 (11th Cir. 2004) (“The phrase ‘which engaged in that violation ’ makes apparent the intent of Congress to limit liab ility to a certain class of defendants. Congress chose to confine private civil actions to defendants who had ‘int ercepted, disclosed, or intentionally used a communicatio n in violation of . . . [the Wiretap Act.]’” (emphasis in original) (citations and some alterations omitted)); see also DIRECTV Inc. v. Robson , 420 F.3d 532, 539 & n.31 (5th Cir. 2005) (collect ing cases that have found “no me rit in [the] assertion that § 2520 expressly provides a private cause of ac tion for [all] violations of the criminal proscriptions of § 2512” (alterations, citation, and internal quotation marks omitted)).
These conflicting arguments have generated di vergent results in the context of private suits alleging that a defendantviolated § 2512(1)(b) simplyby possessing a device that is primarily used for surreptitious wiretapping. Thos e courts that accept a broad reading of theNo. 14-3601 Luis v. Zang, et al. Page 22

“engaged in” language hold that possession of sucha device, without more, is indeed enough to support a private cause of action under § 2520. See Dougherty , 2003 WL 24046760, at *2 (collecting cases in which co urts have found “that § 2520(a) does subject possessors of intercepting devices to civil liability”).
In contrast, those courts that adopt a more limited reading of the “engaged in” language hold that simple possession is not enough to support a private cause of action for a violation of § 2512(1)(b). See, e.g. , Treworgy , 373 F.3d at 1129 (“Because the language of section 2520(a) does not create a private right of action against a person who posse sses a device inviolation of section 2512(1)(b), we cannot create one.”); Directv, Inc. v. Amato , 269 F. Supp. 2d 688, 691 (E.D. Va. 2003) (“[T]he mere possession of such a device, as ba nned by § 2512, creates . . . no justification for private recover y.” (emphasis in original)). Po ssession of a wiretapping device, in other words, can constitute a violation of the Wiretap Act, see 18 U.S.C. § 2512(1)(b), but this violation does not give rise to a private cause of action because “possessi on” of such a device is distinct from “intercepting, disclosing, or intentionally using” a communication.

We conclude that the Eleventh Circuit and t hose other courts that have adopted a narrow reading of § 2520 have the better end of this debate . This is because the phrase “engaged in that violation” plainly refers back to the earlier clause defining the “violation” as an “intercept[], disclos[ure], or intentional[] use[].” See 18 U.S.C. § 2520. The earlier clause thus defines the scope of the phrase “engaged in that violation,” with the implicati on that a court should not read the latter phrase as imposing li ability for violations such as simple possession of a wiretapping device. See Treworgy , 373 F.3d at 1127 (“As explained by one district court, as a matter of grammar and sentence structure, th e phrase ‘that violation’ refers to the interception, disclosure, or intentional use of communicati ons mentioned earlier in the se ntence, and not to the possession of prohibited devices.” (citation, emphasis, and internal quotation marks omitted)).
Our narrow reading of § 2520, however, does not doom Luis’s claim. This is because the facts of the current case ar e materially different from the facts of cases such as Treworgy . In the latter cases, the courts were focused on whet her a defendant’s possess ion of a wiretapping device, without more, was sufficient to support a private cause of action. See id. at 1125 (“The issue presented by this interloc utory appeal [is] . . . whether 18 U.S.C. section 2520(a), asNo. 14-3601 Luis v. Zang, et al. Page 23

amended in 1986, provides a private right of action against persons who possess devices used to intercept satellite tran smissions in violation of 18 U.S. C. section 2512(1)(b), a criminal offense.”); see also DIRECTV Inc. v. Robson , 420 F.3d 532, 539 & n.31 (5th Cir. 2005) (citing Treworgy for the proposition that “the civil cause of action embodied in § 2520 does not cover . . . possessory violations”).
The present case, in contrast, involves much more than simple possession. Instead, as described above, Awareness allegedly manufactur ed, marketed, and sold WebWatcher with knowledge that it would be primarily used to il legally intercept electr onic communications. It then remained actively involved in the operation of WebWatcher by maintaining the servers on which the intercepted communications were later stored for WebWatcher’s users. Awareness thus allegedly took a much more active role in ca using the Wiretap Act violation in this case than the defendants in other cases who did nothing more than possess a wi retapping device in contravention of § 2512(1)(b).
We accordingly emphasize that our narrow holding is consistent with the conclusion that § 2520 does not support a cause of action agains t those who simply possess a wiretapping device. Instead, we today hold that a defendant such as Awareness—which allegedly violates § 2512(1)(b) by manufacturing, marketing, and selling a violative device—is subject to a private suit under § 2520 only when that defendant also play s an active role in th e use of the relevant device to intercept, disclose, or intentionally use a plaintiff’s electroni c communications.
So even though Awareness itself did not init iate the specific ac tion that “intercepted, disclosed, or intentionally used” Luis’s communi cations in violation of the Wiretap Act, it is alleged to have actively manufactured, ma rketed, sold, and operated the device that was used to do so. This is enough to establish that Awarene ss was “engaged in” a violation of the Wiretap Act in a way that defendants such as those in Treworgy and Amato —who simply possessed wiretapping devices—were not. See DirecTV, Inc. v. Tasche , 316 F. Supp. 2d 783, 790 (E.D. Wis. 2004) (“Though Tasche may not have actually done the intercepting hi mself, it would be a stretch to find that he was not ‘e ngaged in’ that act. Those who sell devices that are designed to steal DirecTV’s satellite transmissions to thos e who are intent on steal ing DirecTV’s satellite transmissions are, in my view, ‘engaged in ’ intercepting such transmissions.”).No. 14-3601 Luis v. Zang, et al. Page 24

The dissent disputes the outcome that we reach on this issue, contending that civil liability under §§ 2512(1)(b) a nd 2520 should extend on ly to those persons or entities who themselves intercept, disclose, or use a w ould-be plaintiff’s el ectronic communication. Dissenting Op. 35. As suppor t, the dissent relies on Peavy v. WFAA-TV, Inc. , 221 F.3d 158 (5th Cir. 2000), and Flowers v. Tandy Corp. , 773 F.2d 585 (4th Cir. 1985), which purportedly are consistent with the dissent’s narrow concep tion of §§ 2512(1)(b) and 2520. We find both cases readily distinguishable.

In Peavy , the plaintiffs sought to pursue a civ il action for an alleged violation of § 2511(1)(a). 221 F.3d at 167. That section provi des in pertinent part that a Wiretap Act violation occurs if a person “p rocures any other person to inte rcept . . . any wire, oral, or electronic communication.” 18 U.S. C. § 2511(1)(a). The plain tiffs thus argued that the defendants were liable in a civil action br ought under § 2520 because the defendants had “procured” others to intercept the plai ntiffs’ communications. 221 F.3d at 167-68.
On appeal, the Fifth Circuit considered whether § 2520 was broad enough to encompass defendants accused of violating § 2511(1)(a) via procurement. Id. The court observed that, prior to 1986, § 2520 read as follows: Any person whose wire or oral communicati on is intercepted, di sclosed, or used in violation of this chapte r shall (1) have a civil caus e of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, a nd (2) be entitled to recover from any such person [damages, attorney’s fees, and costs]. 18 U.S.C. § 2520 (1970) (emphasis added). In 1986, however, Congress amended § 2520. Hence, both at the time that Peavy was decided and as currently written, § 2520 reads in relevant part as follows: [A]ny person whose wire, or al, or electronic communication is intercepted, disclosed, or intentionally used in violati on of this chapter ma y in a civil action recover from the person or entity . . . wh ich engaged in that violation such relief as may be appropriate. 18 U.S.C. § 2520 (2012).No. 14-3601 Luis v. Zang, et al. Page 25

The Fifth Circuit found the difference between the two versions of the st atute significant. It noted that the 1986 am endment specifically deleted the refe rence to “procuring” the intercept of an electronic communication, with the implication that Co ngress—by making that deletion— intended to foreclose civil li ability for such conduct. 221 F.3d at 169 (reading the 1986 amendment as a sign that Congress meant “to ta ke away a civil acti on for procurement”).

The civil action in the current case rests on a different statutory f ooting. Luis argues— and we conclude—that his complaint adequately alleges that Awareness “engaged in” a violation of the Wiretap Act. As opposed to th e “procurement” language at issue in Peavy , the “engaged in” language was not deleted from the earlier version of § 2520; inst ead, the “engaged in” language was specifically added when Congress enacted the 1986 amendment. The current case is thus easily distinguishable from Peavy because there exists no implication that Congress intended to foreclose claims such as Luis ’s by altering the language of § 2520.

Flowers is likewise distinguishable. In that case, as in Peavy , the court considered the pre-1986 version of § 2520. See 773 F.2d at 587 & n.2. That versio n of the statute, as noted above, explicitly limited the defendants that could be held liable in a civi l action to those persons or entities who themselves “intercept[ed], disclo se[d], or use[d]” electronic communications, “or procure[ed] any other person to intercept, disclose, or use su ch communications.” 18 U.S.C. § 2520 (1970). The current version of the statute, however, contains no such explicit delineation of the activities that give rise to civil liability. See 18 U.S.C. § 2520 (2012). As a result, Luis’s claim in this case rests on a much firmer statut ory foundation than the clai m that was at issue in Flowers

. Moreover, the relevant claim in Flowers was an assertion that the defendant had sold a device that was later used by th e purchaser to violate the Wire tap Act. 773 F.2d at 589. The Fourth Circuit ultimately concluded that this clai m failed because the sale of the device, without additional conduct by the seller and without its knowledge of the device’s intended use, did not give rise to liability. Id. at 590 (finding no liability for “t he mere selling” of the device); see also id. at 591 (concluding that the seller could not be held liable wh en it lacked “any knowledge of [the] intended use of the device”).No. 14-3601 Luis v. Zang, et al. Page 26

Luis’s claim, in contrast, is not limited to “the mere selling” of the device at issue. Rather, Luis claims that Awareness manufactured, marketed, sold, and actively operated the violative device, all while knowing that its device was to be used primarily for the surreptitious interception of electronic communications. Aware ness’s alleged conduct in this case, in other words, is far more culpable than the defendant’s alleged conduct in Flowers , with the result that Flowers sheds little light on whether Luis has stated a claim unde r §§ 2512(1)(b) and 2520.
The dissent next asserts that our analysis “confuses Awareness’s al leged violations of § 2512 with violations of § 2511.” Dissenting O p. 36. We respectfully disagree because Luis’s claims, as explained below, are analytically distinct.
First, Luis alleges that Awareness violated § 2511 when Awareness itself intercepted his electronic communications in viol ation of the Wiretap Act. See Part II.B. above. But regardless of the outcome of the § 2511 claim, Luis has also alleged a violation of § 2512. He asserts that, by manufacturing, marketing, selling, and activel y operating the wiretapping device at issue, Awareness (1) violated § 2512, and (2) “engage d in” the illegal in tercept of Luis’s communications. Hence, even if a jury ultimat ely concludes that onlyZang (and not Awareness) intercepted Luis’s communications in violation of § 2511, Awareness might still be liable because it “engaged in” that violation ( see § 2520) by manufacturing, marketing, selling, and actively operating the device that was used by Zang to conduct the intercept. Luis’s two claims, in other words, do not rise and fall together.
Finally, the dissent asserts th at our reading of the stat ute interjects unwarranted “indeterminacy” into the evaluation of private suits for claimed violations of § 2512. Dissenting Op. 37. We again respectfully di sagree. The essence of our hol ding is that a defendant who manufactures, markets, and sells a wiretappin g device in violation of 18 U.S.C. § 2512 is potentially liable in a private suit brought under § 2520 when that defendant also plays an active role in the operation of the devi ce to “intercept, disclose, or intentionally use” a plaintiff’s electronic communications. Put diffe rently, the active operation of the device establishes that a defendant who has manufactured, marketed, and sold the device at issue (i n violation of § 2512) has in fact participated in the intercept, disclosu re, or use of a plaintiff’ s communications to such a degree that the defendant has “engaged in ” the underlying violation. Manufacturing,No. 14-3601 Luis v. Zang, et al. Page 27

marketing, and selling the device is thus a necessary prerequisite for a civil suit for a violation of § 2512; and, when that prerequisite is combin ed with the defendant’s active operation of the device at issue, the defendant’s conduct suffices to satisfy the “engaged in” standard of § 2520.
As the dissent observes, Dissenting Op. 36, this standard may in some cases raise factual questions about whether a defendant’s role in operating a wiretapping device is extensive enough to constitute “engaging in” the unde rlying violation of the Wiretap Ac t. But such disputes are no different than any case in which a court or juryis called on to decide whether certain conduct falls within a statutory definition. We accordingl y doubt that the district courts will have any difficulty when applying this standard. For all of these reasons, we reverse the judgment of the district court with respect to th e dismissal of Luis’s § 2512 claim.
D. Luis sufficiently alleged facts supportin g his causes of action under the Ohio Wiretap Act and Ohio common law

In addition to his federal claims under the Wiretap Act, Luis’s complaint contains a number of claims brought under Ohio state law. Th e district court dismisse d all of his state-law claims. On appeal, Luis raises only two of them: (1) the alleged violations of the Ohio Wiretap Act, and (2) the tortious invasion of his privacy.

1. Luis sufficiently pleaded a cause of action under Ohio Rev. Code Ann. § 2933.52 Luis argues that his complaint states a clai m under two different s ubsection of the Ohio Wiretap Act: § 2933.52(A)(1) and § 2933.52(A)(3). Subsection (A)(1) pr ovides that “[n]o person purposely shall . . . intercept a wire, or al, or electronic communi cation,” and subsection (A)(3) states that no person shal l “[u]se . . . the contents of a wire, oral, or electronic communication, knowing or having reason to know th at the contents were obtained . . . in violation of [the Ohio Wiretap Act.]”

a. Purposeful intercept under § 2933.52(A)(1)
As Luis notes, § 2933.52(A)(1) of the Ohio Wi retap Act closely parallels the language of 18 U.S.C. § 2511. Compare 18 U.S.C. § 2511(1)(a) (imposing a penalty on persons who “intentionally intercept[] . . . any wire, oral, or electronic communication”), with Ohio Rev. CodeNo. 14-3601 Luis v. Zang, et al. Page 28

Ann. § 2933.52(A)(1) (providing that no person sha ll “purposely . . . intercept a wire, oral, or electronic communication”). The Acts also use nearly identical definitions of the terms “intercept” and “device.” Compare 18 U.S.C. § 2510(4)-(5) with Ohio Rev. Code Ann. § 2933.51(C)-(D). Thus, for the same reasons that Luis’s allegations state a claim for relief under 18 U.S.C. § 2511, see Part II.B. above, Luis’s allegati ons state a claim for relief under § 2933.52(A)(1) of the Ohio Wiretap Act. Cf. Nix v. O’Malley , 160 F.3d 343, 348 (6th Cir. 1998) (construing § 2933.52(A)(2) and (A)(3) of the Ohio Wiretap Act as “mirroring” or as being “equivalent to” the federal Wiretap Act).
Consistent with its rulings on Luis’s federal cl aims, the district court held that the Ohio Wiretap Act “does not contemplate imposing ci vil liability on software manufacturers and distributers for the activities of third parties.” The court thus concluded that Awareness could not be held liable for Joseph’s actions in installing and using WebWatcher.
This reasoning is erroneous because Luis does not allege that Awareness is liable solely on the basis of Joseph’s actions. Luis instead alleges that Awareness itself violated the Act in question. In particular, Luis’s instant message s, emails, and other electronic communications were allegedly forwarded to Awareness’s own serv ers in California. The messages were then allegedly (1) stored for later disclosure to Joseph, and (2) subjected to Awareness’s “Alert Word” filtering system. Based on these allegations, Awareness itself “acquir[ed] . . . the contents of . . . [Luis’s] electronic communicat ions” and thus “intercep ted” the communications within the meaning of the Ohio Wiretap Act. See Ohio Rev. Code Ann. § 2933.51(C) (defining “intercept” as “the aural or other acquisition of the contents of any wire, oral, or electronic communication”). Luis’s complaint could admitte dly be clearer on this point, but we must construe Luis’s pro se pleading liberally. See Williams v. Curtin , 631 F.3d 380, 383 (6th Cir. 2011). We thus conclude that the district court e rred and that Luis has ad equately stated a claim for relief on the ground that Awareness itself a llegedly intercepted Luis ’s communications in violation of § 2933.52(A)(1).No. 14-3601 Luis v. Zang, et al. Page 29

b. Unauthorized use of the contents of an electronic communication under § 2933.52(A)(3) Luis’s second theory of liability under the Ohio Wiretap Act is that Awareness illegally “used” the contents of his elect ronic communications. This theory has three requirements. Luis must first allege that Awareness “used” an intercepted communication as that term has been defined for the purposes of § 2933.52(A)(3). He must next allege that the interception that captured the communication was itself a vi olation of the Ohio Wiretap Act. See Nix , 160 F.3d at 348. Finally, Luis must allege that Awareness kn ew or had reason to know of the violation at the time that it used the intercepted communication. See id.
Luis alleges that Awareness “used” his communications when Awareness stored them on its servers in California and then disclosed them to Joseph for his later review. Ohio has treated the disclosure of an intercepted communi cation as conduct th at satisfies the “use” requirement for the purposes of the Ohio Wiretap Act. See Nix , 160 F.3d at 348 (“In 1996, Ohio replaced section 2933.52(A)(3)’s prohibition on ‘disclosure’ with a prohibition on ‘use,’ but . . . the district court and all parties have consisten tly interpreted § 2933.52(A)(3) to prohibit both use and disclosure . . . .”). In addition, Awareness doe s not challenge this inte rpretation of “use.” Luis has thus satisfied the first requirement for pleading a cause of action under § 2933.52(A)(3).
Next, Luis sufficiently alleged that Awareness itself violated the Ohio Wiretap Act by intercepting his communications wi thin the meaning of § 2933.52(A)(1). See Part II.D.1.a. above. Moreover, even if Luis’s theory of direct liability for Awa reness ultimately proves untenable, he has alleged that Joseph also violated § 2933.52(A)(1) by intercepting Luis’s electronic communications. Lu is has therefore satisfied the second requirement of § 2933.52(A)(3) by alleging that hi s electronic communications we re indeed in tercepted in violation of the Ohio Wiretap Act.
Finally, Luis’s complaint alleges that Awareness markets WebWatcher with the expectation that purchasers will use the pr ogram for surreptitiously monitoring the communications of other persons. He claims in particular that Awareness “intentionally targets [its] product at spouses in [its] marketing campai gns—enticing them with the lure of finding out everything that goes on in the targeted computer’s private accounts.” (Empha sis in original.)No. 14-3601 Luis v. Zang, et al. Page 30

This marketing, Luis alleges, goe s “far beyond” any legal uses thatthe product might have and is reminiscent of advertising strategies that the Federal Trade Commission has previously condemned as encouraging illegal spying.
Assuming that these allegations accurately describe Awareness’s marketing efforts—as we must at this pointin the litigation, see Boland v. Holder , 682 F.3d 531, 534 (6th Cir. 2012) (“[W]e accept all facts alleged in the complaint as true.”)—Awareness would have had a “reason to know” that any communications that it obt ained through WebWatcher were obtained in violation of the Ohio Wiretap Act. Luis has th erefore adequately pleaded the third requirement to establish liability under § 2933.52 (A)(3). We accordingly reverse the district court’s dismissal of this claim.

2. Luis sufficiently pleaded invasion of privacy under Ohio common law
Luis’s final argument is that he has suffici ently pleaded a claim for common-law invasion of privacy. The parties agree thatOhio recognizes the “intrusion” variant of this tort. Prevailing on an intrusion claim requires th e plaintiff to show that the defendant caused a “wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.” Welling v. Weinfeld , 866 N.E.2d 1051, 1053 (Ohio 2007) (quoting Housh v. Peth , 133 N.E.2d 340, 343 (Ohio 1956)). The plaintiff must have a “reasonable expectation of privacy” in the area or subject matter in which the alleged intrusion occurs. Retuerto v. Berea Moving Storage & Logistics , 38 N.E.3d 392, 406 (Ohio Ct. App. 2015) (internal quotation marks omitted). This expectation depends on the “totality of the circumstances.” Lazette v. Kulmatycki , 949 F. Supp. 2d 748, 761 (N.D. Ohio 2013).
In the present case, Luis alleges that he began exchanging elec tronic communications with Catherine in February 2009. Nothing in th e complaint suggests that Luis or Catherine expected other people to monitor these communications, nor does Awareness contend that any other person had a legitimate reason to access these exchanges. In addition, the complaint specifically alleges that Luis’s “conversations a nd communications were private,” and that the installation of WebWatcher allo wed Joseph and the other defendants to “intercept and recordNo. 14-3601 Luis v. Zang, et al. Page 31

conversations and actions to which they would not otherwise be privy.” These allegations sufficiently establish that Luis had a reasonabl e expectation of privacy in his exchanges of electronic communications with Catherine. Cf. Lazette , 949 F. Supp. 2d at 761 (rejecting a motion to dismiss an intrusion claim in part be cause the emails at issue “were highly personal and private”).
Luis next alleges that Awareness carried out the intrusion by intercepting his communications in violation of the federal and state Wiretap Acts. See Part II.D.1.a. above. Awareness’s conduct was therefore “wrongful” for the purposes of Luis’s intrusion claim. See LeCrone v. Ohio Bell Tel. Co. , 201 N.E.2d 533, 536 (Ohio Ct. App. 1963) (observing that the kind of conduct giving rise to an intrusion claim “g enerally would be crimin al” or “a violation of public utility law”); see also Retuerto , 38 N.E.3d at 407 (noting th at an example of conduct constituting intrusion “woul d be wiretapping”).
Finally, Luis alleges that learning of Awareness’s conduc t caused him “surprise and dismay.” He adds that, after intercepting hi s communications, Awareness disclosed “private and potentially embarrassing facts” to third parties such as Joseph. These allegations support a reasonable inference that Awareness’s alleged in trusion caused “mental suffering, shame or humiliation.” See Welling , 866 N.E.2d at 1053. Luis therefor e adequately pleaded the last remaining aspect of his co mmon-law intrusion claim. Cf. LeCrone , 201 N.E.2d at 536 (“As a general proposition, eavesdr opping on phone conversations of another by unauthorized mechanical means, or a so[-]called ‘tap,’ is the ki nd of act or conduct that fits the definition of an intrusion or prying into a nother’s private affairs.”).
The district court reached the op posite conclusion. It held th at Luis had failed to state a claim against Awareness because (1) Luis’s fact ual allegations were too sparse, and (2) any liability should be attributed to Joseph rather than to Awareness.

We find the district court’s anal ysis unconvincing. First, as described above, Luis alleged factual content related to each el ement of his intrusion claim. The complaint admittedly could contain additional details, and Luis’s intrusion claim against Awareness may yet fail, but at this point Luis need nudge his claim pa st only the “specu lative level.” See Bell Atl. Corp. v.No. 14-3601 Luis v. Zang, et al. Page 32

Twombly , 550 U.S. 544, 555 (2007); see also Bassett v. Nat’l Collegiate Athletic Ass’n , 528 F.3d 426, 430 (6th Cir. 2008) (“ Twombly does not require heightened fa ct pleading . . . .” (internal quotation marks omitted)). Luis, in other wo rds, has provided enough information for a factfinder to reasonably infer that Awareness wa s responsible for each element of an intrusion claim. Luis’s complaint is therefore adequate. See Kreipke v. Wayne State Univ. , 807 F.3d 768, 774 (6th Cir. 2015) (noting that a complaint should “contain ei ther direct or inferential allegations respecting all material elements nece ssary for recovery under a viable legal theory” (internal quotation marks omitted)).
Second, Luis’s intrusion claim does not depend on attributing the actions of Joseph to Awareness. Rather, as previously explained, Luis alleges that Awareness itself violated the federal and state Wiretap Acts by acquiring Luis ’s communications. Awareness is therefore unable to escape Luis’s claims simply by argui ng that a different party was actually more culpable. We accordingly conclude that Luis ha s adequately stated an intrusion claim against
Awareness.

VI. CONCLUSION
Our holdings should not be construed as fore shadowing the ultimate outcome of Luis’s claims. Awareness may yet prevail on summary j udgment or at trial. For now, however, Luis’s claims are sufficient to survive Awareness’s moti on to dismiss. The judgment of the district court is therefore REVERSED and the case is REMANDED for further proceedings consistent with this opinion.No. 14-3601 Luis v. Zang, et al. Page 33

_________________ DISSENT

_________________ ALICE M. BATCHELDER, Circuit Judge, di ssenting. I agree that the complaint sufficiently alleges that WebWatcher “intercepts ” communications within the meaning of the Wiretap Act, but my agreement with the majority ends there. Regarding his § 2511 claim, Luis’s complaint does not allege that Awareness itself intercepted Luis’s communications. As for § 2512, even assuming that Luis alleges a viola tion of that section, the Wiretap Act does not provide a private cause of action. I would affirm.
Luis’s § 2511 argument on appeal is admitte dly compelling: Awareness, by operating the online software central to WebWatcher’s functionali ty, bears the same level of culpability as its customer for the software’s illegal interceptions. But this theory of the case 1 is not alleged in the complaint. No matter how liberally we read Luis ’s complaint, he simply does not allege that Awareness was the one intentionally doing the intercepting.
The fact is that the complaint never names Awareness in the context of WebWatcher’s operation. Awareness is named only twice. Initia lly, in paragraph 12, Awareness is identified as one of the defendants; that paragraph merelystates that the company “is the maker of WebWatcher computer monitoring software . . . and is responsible for all marketing of this product.” The only other mention is in paragrap h 96 of the complaint’s substantive allegations, which focuses on Awareness’s marketing and design of WebWatcher. 2 The allegations include intentionally marketing WebWat cher to spouses, knowing that WebWatcher could be used surreptitiously, and knowing that it should have been modified to prevent any illegal use. The bulk of Luis’s factual allegations describe th e conduct of other defendants now dismissed from the suit.

1 Luis’s current theory of his case against Awarene ss is noticeably absent from his opposition to Awareness’s motion to dismiss. It first appears in his objections to the magistrate judge’s R&R. Inexplicably, Awareness did not raise the issue of waiver, thereby itsel f forfeiting an otherwise-sound basis for affirmance.
2 Luis’s opposition to Awareness’s motion to dism iss also focuses on Awareness’s actions in manufacturing, marketing, and selling WebWatcher.No. 14-3601 Luis v. Zang, et al. Page 34

The majority accepts Luis’s argument on appeal that the complaint directly implicates Awareness in paragraph 77. But this reading is mu ch more than just ch aritable—it grasps at straws. In describing how WebW atcher operates, Paragraph 77 uses only a possessive pronoun that lacks any antecedent: “WebWatcher immediately and instantaneously routs the intercepted communications to their servers located in Californi a to be stored for thei r subscribers to later retrieve at their leis ure.” Awareness is neither named nor the subject of the action. This paragraph, located amidst Luis’s allegations agai nst the other defendants, does not give rise to the plausible inference that Awareness intentionally intercepted Luis’s communications. See Ashcroft v. Iqbal , 556 U.S. 662, 682–83 (2009).
Even setting aside Twombly and Iqbal ’s pleading standards (as the majority does), the main purpose of a complaint has always been “t o ‘give the defendant fa ir notice of what the claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)). Luis’s complaint fails even this lenient standard. It does not put Awareness on notice that it —the manufacturer and seller— could be liable for anonymous customer Joseph Za ng’s misuse of the WebWatcher. Luis’s novel theory of liability does not appear even to have been tried, much less to have been successful, in any previous case. Neither Aware ness nor the district co urt should have been expected to divine it from Luis’s allegations agains t the other defendants. I would affirm the district court’s dismissal of Luis’s § 2511 claim against Awarene ss. I would affirm the dismissal of Luis’s state-law claims for the same reason. See Nix v. O’Malley , 160 F.3d 343, 348 (6th Cir. 1998) (interpreting the Ohio Wiretap Act identically to the federal Wiretap Act).
As for Luis’s § 2512 claim against Awareness, I am uncertain whether the complaint’s factual allegations and the attach ed marketing materials plausibly indicate that the WebWatcher is “primarily useful for the purpose of the surreptitious interception of . . . electronic communications.” See 18 U.S.C. § 2512(1)(b). A monitoring device like the WebWatcher is plainly useful for purposes wholly consistent with full disclosure, in cluding an employer’s monitoring of its employees or parental monitoring of children. But even accepting that Luis has alleged a violation of § 2512, the Wiretap Act l acks a private right of action to remedy thatNo. 14-3601 Luis v. Zang, et al. Page 35

violation. The majority’s contrary conclusion distorts the statutory text and lacks any standard to guide future litigants.
The Wiretap Act, a criminal statute, contains a private right of ac tion to remedy certain violations. The provision creating this right of action reads as follows: [A]ny person whose wire, or al, or electronic communication is intercepted, disclosed, or intentionally used in violati on of this chapter ma y in a civil action recover from the person or entity . . . wh ich engaged in that violation such relief as may be appropriate. § 2520(a). The series of verbs “intercepted, di sclosed, or . . . used” comes from § 2511(1)(a)– (e). There is no dispute that a plaintiff must be the victim of a § 2511 violation in order to sue under § 2520(a).
But who may be liable under this provision? As the majority correctly notes, the phrase “engaged in that violation” narrows the categor y of possible defendants. “[T]hat violation” plainly refers back to the earlier verb series ; a proper defendant is one who “engaged in” an illegal “intercept[ion] , disclos[ure], or . . . use[].” Every ci rcuit court that has addressed the issue has so held. See DirecTV, Inc. v. Treworgy , 373 F.3d 1124, 1127 (11th Cir. 2004) (holding that § 2520(a) does not create a priv ate right of action for possession of a device in violation of § 2512(1)(b), because the plain language limits the class of defendants to individuals or entities that committed the violation suffered by the plaintiff); Peavy v. WFAA-TV, Inc. , 221 F.3d 158, 169 (5th Cir. 2000) (holding that § 2520(a) provides a right of action only against a defendant who “intercepted, disclosed, or us ed” the covered communications); see also DirecTV Inc. v. Robson , 420 F.3d 532, 538–39 (5th Cir. 2005) (noting th at § 2520(a) does not provide a private right of action “for merely po ssessing or purchasing” a device in violation of § 2512(1)(b)); DirecTV, Inc. v. Nicholas , 403 F.3d 223, 227 (4th Cir. 2005) ( quoting approvingly that court’s earlier conclusion in Flowers v. Tandy Corp. , 773 F.2d 585, 589 (4th Cir. 1985), that “[t]he express language of § 2520 is . . . not susceptibl e to a construction whic h would provide a cause of action against one who manuf actures or sells a device in violation of § 2512 but does not engage in conduct violative of § 2511”).No. 14-3601 Luis v. Zang, et al. Page 36

Having come this far, the majority inexplicably fails to reach the only logical conclusion: a defendant who violates only § 2512—which crim inalizes “mail[ing],” “manufactur[ing],” “sell[ing],” “assembl[ing],” “po ssess[ing],” and “advertis[ing]” de vices “primarily useful for” such interception—faces no civil liability. Manu facture, marketing, and sale do not “engage[]” the manufacturer or seller in the subse quent use of the device by someone else.
The majority distinguishes Treworgy and Robson , which referred specifically to possession of a device, but it does not c onsider the other a bove-cited cases. See Peavy , 221 F.3d at 169 (rejecting liability for illegally procuring anillegal interception); Flowers , 773 F.2d at 589 (rejecting liability for illegal manufacture or sale). And the only supporting authority the majority can muster is an alternative holdi ng from an out-of-circuit district court. See DirecTV, Inc. v. Tasche , 316 F. Supp. 2d 783, 789 (E.D. Wis. 2004) (a dopting in the first instance a broad interpretation of § 2520 recognizing a private ri ght of action for all Wiretap Act violations).
Nor does the majority cogently explai n why manufacturing, marketing, and selling should be treated differently from possession. Instead of addressing these violations categorically, the majority dives into the facts of this case: Awa reness took an “active role.” This approach introduces two flaws.
As a factual matter, the opinion confuses Awa reness’s alleged viola tions of § 2512 with violations of § 2511. The majority says that Luis can sue Awareness for violating § 2512 because of Awareness’s “active[] engage[ment] inthe operation of WebWatcher by maintaining the servers” that stored intercepted communications. But that is exactly the activity that constitutes the violation of § 2511. It has noth ing to do with inten tionally “manufactur[ing], assembl[ing], possess[ing], or sell[ing] any” device, the activity prohibited by § 2512.
But even setting aside this confusion, the ma jority’s nebulous, fact-based analysis is hardly a reasoned way to determine whether a caus e of action exists. Th e majority’s holding, if prescriptive, will result in case-by-case determinati ons of whether this or that defendant’s actions rose to the level of “engagement” in a § 2511 violation. And although “engagement” is apparently broader than actually committing the violation, the majority’s opinion gives noNo. 14-3601 Luis v. Zang, et al. Page 37

guidance as to where the line is to be drawn. Ther e is no reason to inject such indeterminacy into the start of every Wiretap Act lawsuit.
The simple alternative to this whole muddle is apparent from a straightforward reading of the statutory text. It ha s been adopted by every ci rcuit to consider the is sue until now. The plain meaning of § 2520(a) allows a plaintiff to recover only from a defendant who personally intercepted, disclosed, or used his co mmunications in violation of § 2511.
I respectfully dissent.