Happy Wednesday CIPA World! Fynn here, reporting the United States District Court for the Southern District of California’s decision in In re Sony Elecs. Priv. Litig., No. 26-CV-00297-H-JAC, 2026 WL 3309811 (S.D. Cal. Nov. 2, 2026).
Plaintiffs in this case filed a class action suit alleging that Sony, the electronics company, embedded automatic content recognition (“ACR”) technology into their Smart TVs and used it to collect and sell viewing data without consent. Plaintiffs further alleged that the information collected by the Smart TV was sensitive because it revealed information about political preferences, religious beliefs, sexual orientations, health conditions, family compositions, age, and socioeconomic status.
In its defense, Sony filed a motion to compel arbitration and a motion to dismiss for failure to state a claim. The following sections will discuss the court’s reasoning in denying Sony’s motion to compel arbitration, as well as its analysis of several of the most notable claims challenged in Sony’s motion to dismiss.
Sony’s Motion to Compel Arbitration
The enforceability of an arbitration agreement depends on the party’s manifestation of assent. This means that the party being bound needs to make their agreement obvious and known. Sony argued that Plaintiffs manifested assent to arbitration through their silence, by failing to opt out and continuing to use their smart TVs. Sony’s arbitration provision, however, was merely listed on a piece of paper inside the packaging titled “Limited Warranty”. The court concluded that nothing on the box or on the warranty document alerted customers to bilateral terms and conditions that they would accept by using the Smart TV. Since a reasonable person would not have had fair warning of the arbitration provision contained in Sony’s Limited Warranty, it could not result in a binding agreement. The court therefore denied Sony’s motion to compel arbitration.
Motion to Dismiss for Failure to State a Claim
Intrusion Upon Seclusion
Beginning with Plaintiffs intrusion upon seclusion claims, Sony argued that Plaintiffs did not properly allege an actionable “intrusion” because they were a party to the relevant communications. To state a claim under this law, a plaintiff must plead (1) intentional intrusion into a place, conversation, or matter to which the plaintiff had a reasonable expectation of privacy (2) in a manner highly offensive to a reasonable person. The court agreed with Sony here because Plaintiffs’ complaint acknowledged that Sony had marketed its Smart TV as providing a personalized viewing experience by using information from TV inputs. Plaintiffs also plead that they had communicated with their Smart TVs. As such, the complaint demonstrated that Sony was an intended recipient of Plaintiffs’ viewing activities and not an intruder of private communications. Plaintiffs’ claim of intrusion upon seclusion was therefore dismissed.
Invasion of Privacy
Plaintiffs’ claim for an invasion of privacy under California law similarly requires (1) a legally protected privacy interest, (2) a reasonable expectation of privacy, and (3) an intrusion that amounts to a breach of social norms. To defeat this claim, Sony argued that its conduct was not “highly offensive”. However, the court explained that the issue of whether a defendant’s data tracking and collection practices could highly offend a reasonable individual could not be resolved at the pleading stage. Plaintiffs alleged that Sony continuously monitored their viewing behavior, collected sensitive information, and sold that information to partners. This information included political belief, religious ideologies, sexual orientation, and health markers. The court declined to decide whether Sony’s tracking of such information constituted “routine commercial behavior” and denied Sony’s motion to dismiss Plaintiffs’ privacy claim.
Public Disclosure of Private Facts
A claim alleging private disclosure of public facts requires (1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern. Sony attacks Plaintiff’s failure to sufficiently allege the first and third prongs of the requirement. The court, however, ruled in favor of Plaintiffs because the complaint did allege that Sony does send Plaintiff’s data to corporate recipients who further disseminate the information to data brokers, advertisers, and other agencies. As for prong three, the court again refused to decide whether Sony’s behavior was “highly offensive” at this stage of litigation. Accordingly, Sony’s motion to dismiss the claims for public disclosure of private facts was denied.
The Wiretap Act and CIPA Section 631(a)
The Wiretap Act and CIPA Section 631(a) make it unlawful to intentionally and unauthorizedly intercept electronic communications. The court dismissed Plaintiffs’ claims under the Wiretap Act and CIPA Section 631(a) because Plaintiffs’ complaint consistently alleged that Samba, a third party television analytics company, operates its own ACR pipeline on Sony’s Smart TVs. This meant that Sony would not have been the entity intentionally intercepting Plaintiff’s communications. Since Plaintiffs’ own description of how Sony’s ACR technology operates repeatedly referred to actions taken by Samba, the court dismissed the claims with leave to amend.
CIPA Sections 632 and 638.51
To state a claim under Section 632, a plaintiff must allege (1) an electronic recording of or eavesdropping on (2) a confidential communication (3) to which all parties did not consent. A confidential communication within the meaning of this provision is one “carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.” The court explained that internet communications do not generally give rise to the expectation that communications are confidential. The court further reasoned that Plaintiffs failed to demonstrate an objective expectation that their communications with the Smart TV would not be overheard or recorded because their complaint acknowledged that Sony’s ACR feature would use information from TV inputs. Since Plaintiffs failed to show their communications were confidential, the court dismissed their CIPA Section 632 claim.
The court also dismissed Plaintiffs’ CIPA 638.51 claim because it contradicted their Section 632 claim. CIPA Section 638.51 prohibits the installation or use of a pen register or a trap and trace device without first obtaining a court order. The definitions of “pen register” and a “trap and trace device” both exclude devices that record the contents of a communication. However, Section 632 only applies to the eavesdropping or recording of confidential communications. Plaintiffs cannot simultaneously argue that section 638.51 and section 632 were violated. One excludes tracking devices while the other depends on the use of a technology that can track and record confidential communications. As such, the court found Plaintiffs’ claims to be contradictory and dismissed the section 638.51 claim with leave to amend.
Video Privacy Protection Act
Under the VPPA (“Video Privacy Protection Act”) a video tape service provider can be held liable for knowingly disclosing personally identifiable information concerning a consumer. The ordinary person test establishes that information is only personally identifiable if it would permit an ordinary person to identify a specific individual’s watching behavior. Plaintiffs alleged that Sony disclosed the audiovisual contents viewed by Plaintiffs to third parties. Sony, however, argued that Plaintiffs failed to allege that an ordinary person would be able to identify Plaintiffs’ video watching behaviors based on this information. The court was not convinced by Plaintiffs’ allegations, finding that the complaint lacked details demonstrating that an ordinary person could have used the information captured by Sony’s ACR technology to identify Plaintiffs. As a result, the court dismissed Plaintiff’s VPPA claim.
In conclusion, Sony may have defeated some of Plaintiff’s claims, but its data collection practices are still under scrutiny. So, next time you sit down to watch TV, it’s worth asking yourself who is really watching who? On that ominous note, thanks for following along and see you next time!