Recent CIPA Ruling Sets Stage for Showdown Over Business Call Monitoring

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Last week, a California court of appeals ruled that a state statute -- the California Invasion of Privacy Act, Cal. Penal Code § 632 (“CIPA”)-- prohibit a business from monitoring its own customer service and other telephone calls conducted in the ordinary course of its own business unless consent is obtained from each person on the call. Kight v. CashCall, Inc.,--Cal. Rptr. 3d--, 2011 WL 5829678, No. D057440 (Cal. Ct. App. Nov. 21, 2011). The CashCall decision conflicts with a long-standing federal statute expressly authorizing one-party consent monitoring and recording for calls conducted in the ordinary course of business. The CashCall court also refused to follow an earlier Ninth Circuit decision holding that undisclosed business call monitoring does not constitute an invasion of privacy under CIPA. See Thomasson v. GC Services L.P., 321 Fed. Appx. 557 (9th Cir. 2008). Venable partner Tom Gilbertsen represented GC Services in the Ninth Circuit matter, which upheld summary judgment for our client on grounds that a business entity is capable of acting only through its authorized employees, constitutes a “person” under CIPA, and is therefore incapable of eavesdropping upon its own business telephone calls because no third party is present when a supervisor monitors employee business calls.

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