judgment on grounds other than those considered by the
district court itself.73
Second, the plaintiffs argue that the party exception
should not apply for equitable reasons, in that the transmitted
GET requests included cookie information that the
communications included only because of the defendants’
surreptitious circumvention of the cookie blockers. The point
here is that, though the plaintiffs sent the GET requests to the
defendants voluntarily, they were induced to do so by deceit.
Though we are no doubt troubled by the various deceits
alleged in the complaint, we do not agree that a deceit upon
the sender affects the presumptive non-liability of parties
under § 2511(2)(d). “In the context of the statute, a party to
the conversation is one who takes part in the conversation.”74
There is no statutory language indicating this excludes
intended recipients who procured their entrance to a
conversation through a fraud in the inducement, such as, here,
73
See Jones v. Se. Pa. Transp. Auth., __ F.3d __, 2015 WL
4746391, at *8 (3d Cir. Aug. 12, 2015).
74
Caro v. Weintraub, 618 F.3d 94, 97 (2d Cir. 2010) United
States v. Pasha, 332 F.2d 193 (7th Cir. 1964)
(“[I]mpersonation of the intended receiver is not an
interception within the meaning of the statute.”); Clemons v.
Waller, 82 Fed. App’x 436, 442 (6th Cir. 2003) (“By citing
Pasha, Congress strongly intimated that one who
impersonates the intended receiver of a communication may
still be a party to that communication for the purposes of the
federal wiretap statute and that such conduct is not proscribed
by the statute.”).
36