Stanford researcher Jonathan Mayer, in an email to the Wall Street Journal’s Elizabeth Dwoskin and Rolfe Winkler:

Courts are doing pretzel twists to slot modern electronic privacy issues into antiquated statutory schemes. Congress badly needs to update the nation’s privacy laws; we can’t leave the courts with so little guidance and expect consistent results.

The inconsistent application of the law across states suggests the issue may be ripe for appeal on both fronts, and may be on a long journey to the Supreme Court. The Delaware court saw no harm in Google’s circumvention of browser-based privacy settings and thus no cause of action.

What interests me is that the information you can collect via someone’s browsing behavior with a cookie is probably similar to the information you can collect by scanning their email, the action at issue in the North Carolina case, in which the judge denied Google’s motion to to dismiss the suit.

Thus, it’s the difference in the method of collection, even where the subject of collection is the same, that may be triggering the proliferation of multiple interpretations of privacy law.

Of course, it’s worth noting that the wiretap law refers specifically to communication interception, which applies directly to email. While browsing history can tell a great deal about someone, it’s not, strictly speaking, a mode of communication, so plaintiffs probably need to rely more on the common law.

I wish I had more time to sink my teeth into the issue, but I’ll have to settle for sharing a few useful links on privacy law for those interested in learning more:

• EFF on Privacy
• Wikipedia, particularly good for the history of privacy law in the U.S.
• Prof. Daniel Solove: The Chaos of U.S. Privacy Law
• Michael McFarland, SJ: Privacy and the Law