Readers of this blog know about the never-ending barrage of consumer privacy litigation commenced against online companies in connection with their collection of consumer data. Several of these cases have recently been filed by Pacific Trial Attorneys, a law firm based in California. Specifically, Pacific Trial Attorneys has brought claims under the California Invasion of Privacy Act ("CIPA"), alleging violations of consumer privacy.
Pacific Trial Attorneys Wiretapping Claims
CIPA makes it unlawful to intentionally, and without the consent of all parties to a communication, "eavesdrop upon or record the confidential communication" using an "electronic amplifying or recording device." It is significant to note that California is an all-party consent state, which means that all parties to a communication must consent for the recording to comply with the law. CIPA demands generally allege that online companies "eavesdrop" on consumers through the use of a variety of techniques, including: (1) third-party website visit recording technology; (2) tracking pixels; (3) certain web beacons; and/or (4) chatbots.
Lately, many of these claims for alleged wiretapping have been unsuccessful. Consequently, Pacific Trial Attorneys and other plaintiffs' firms, such as Swigart Law Group, have brought actions through use of another provision of CIPA, one which prohibits the unauthorized utilization of pen registers and trap and trace devices. A "pen register" is defined as a "device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, but not the contents of a communication."
A "trap and trace" device is similar to a pen register, except that it captures incoming, rather than outgoing, transmissions. In most cases, use of a pen register or trap and trace device requires either a court order or dual-party consent.
CIPA Claims in Other States
In an effort to protect consumer privacy, other jurisdictions have enacted wiretapping laws that are similar to California's, including Pennsylvania and Washington. All three jurisdictions' eavesdropping laws allow for private rights of action, for which prevailing parties can recover damages, as well as attorneys' fees and costs. Accordingly, online companies would be well advised to stay abreast of developments in how courts interpret decades old wiretapping laws in today's digital landscape.
Pacific Trial Attorneys CIPA Demands Will Likely Continue
As our readership is aware, states throughout the country are ramping up their efforts in the consumer data privacy arena. These efforts will only increase in the coming years. Statutes which contemplate private rights of action have been attractive to the plaintiffs' bar. The attorneys at Klein Moynihan Turco have significant experience in defending companies against CIPA claims in matters involving Pacific Trial Attorneys and Swigart Law Group.
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