What types of CIPA Cases Are There?

There are currently four types of cases driving most of the litigation under the California Invasion of Privacy Act.

First, call recording cases. Claims that a call between a consumer and a business were recorded without the consent of the consumer. These cases can be dangerous where a business lacks proper policies related to disclosing call recording. Most of the time, however, these cases may arise out of one-off mistakes by employees and cannot result in class litigation.

Second, cases arising out of web session recording technology. A new wave of cases alleging that TCPA-blunting technology that records consent events on websites constitutes “eavesdropping” and “wiretapping” have been brought in Ninth Circuit. Although these cases do not appear to have merit based on the language of the statute–these technology companies only “record” and do not read or analyze interactions in real time–courts have been reluctant to dismiss these actions at the pleadings stage.

Third, cases arising out of general web session recording with consumers. Many companies will use third-party technology to provide analytics regarding a consumer’s experience with a website. While these technologies are largely used to assist consumes in navigating the website–a positive thing for consumers–some courts have found the use of this technology can be an invasion of privacy if consent is not obtained before the web session details are recorded.

Fourth, and perhaps most problematically, cases involving third-party chat boxes on websites. The argument goes that the consumer is attempting to communicate only with the website provider and the undisclosed use of a third-party to communicate with the consumer–either directly or indirectly–constitutes “eavesdropping.” The communication platform provider is viewed as a “third party” to the communication who is listening in without the consumer’s consent.

All of these types of cases may be brought as a class action. Numerous and various defenses may exist, depending on the privacy policy and practices of a business.

If you are used in a CIPA case or are facing a CIPA demand be sure to swiftly seek qualified counsel. A violation of the Act can carry a $5,000.00 penalty!