But perhaps the real lesson from this decision is that it would have been over by simply obtaining opt-in consent prior to recording any consumer communications submitted through the company’s website. And that’s the real bait-and-switch here.Īt bottom, the Javier case is far from over. Indeed, these plaintiffs would never be able to establish that their voluntary communications and interactions on public websites could somehow be considered “confidential,” so they are forced to conflate recording with wiretapping. That is, Section 632 protects confidential communications from being recorded without all parties’ consent, while Section 631 protects any communication from being monitored in transit – true wiretapping. But in our view, these claims are, in reality, CIPA Section 632 claims improperly dressed up as Section 631 claims. That, however, has not stopped plaintiffs’ attorneys who specialize in trolling websites for alleged violations of various laws (e.g., ADA website or Unruh Act claims) from latching onto Javier and adding Section 631 claims to their shakedown checklist. Notably, the district court also ruled – albeit in a footnote – that the plaintiff’s complaint should be dismissed on other grounds, including that Assurance, the website operator, was necessarily a party to the communications, and could not have “wiretapped” its own website. The Ninth Circuit panel only reversed the district court’s primary ruling that the plaintiff’s retroactive consent to Assurance’s Privacy Policy completely defeated the plaintiff’s Section 631 wiretapping claim. To be clear, the Javier decision is expressly limited in scope. The court, ruling in favor of the plaintiff, concluded that Section 631 of CIPA requires the prior express consent of all parties. Critical to the Ninth Circuit’s ruling, the plaintiff was not prompted to agree to the company’s Privacy Policy until after the video recording. Prior to requesting an insurance quote, the plaintiff allegedly answered a series of questions about his demographic information and medical history.Īllegedly without the plaintiff’s knowledge, TrustedForm captured and created a video recording of the entire interaction in real time. Assurance IQ, LLC and Active Prospect Inc, the plaintiff claimed that he visited an insurance website that featured a product called “TrustedForm” that records users’ interactions with the website and creates a unique certificate for each user based on the user’s agreement to be contacted. Further, California is a two-party consent state – meaning that all parties to a communication must consent to recording protected communications. Assurance IQ, LLC and Active Prospect Inc.Īs background, Section 631(a) of CIPA prohibits (1) intentional wiretapping, (2) willfully attempting to learn the content of communications while the same are in transit, and (3) attempting to use or communicate information obtained as a result of the two previous prohibitions. This ruling is notable for website operators as it signals that obtaining targeted consent before using commonly deployed website features – such as chat bots and lead verification recording programs – can nip burgeoning CIPA “wiretapping” lawsuits in the bud. According to a recent unpublished Ninth Circuit ruling, failure to obtain consent prior to using recording technologies is not sufficient for purposes of the California Invasion of Privacy Act (CIPA).
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