The Sixth Circuit has ruled that surveillance software manufacturers can be held liable under federal wiretap law for spying done by a customer who purchased their product, a holding that should force a broad range of companies to take a hard look at how they are building and marketing their products.

In a 2-1 decision reversing the dismissal of the dispute, the appellate panel concluded that the lower court was wrong to let Awareness Technologies Inc. off the hook for wiretapping claims lodged by a man who claims his communications with a woman were surreptitiously intercepted by her husband using the company's WebWatcher software.

"Although this civil litigation returns to the district court at an early stage, the Sixth Circuit's decision opens the door to potential civil and criminal liability for persons or entities that manufacture, advertise, sell and provide customers with software that monitors electronic communications," Ballard Spahr LLP partner Edward McAndrew said. "In the Sixth Circuit, at least, it's not just the end user of the software that may be liable."