As our readers know, the use of internet tracking technologies on consumer-facing websites is widespread. Utilization of these third-party tracking tools, however, has led to a proliferation of lawsuits alleging that companies wiretap, without consent, consumer communications on their websites. Recently, a Pennsylvania federal judge issued a noteworthy decision in which she dismissed wiretapping claims asserted against a large health insurance provider. Below, we discuss the allegations contained in the Complaint and the Court’s decision in detail.
Judge Finds Consent Sufficient for Dismissal of Wiretapping Claims
In Adair, et al. v. Cigna Corporate Services, LLC and the Cigna Group (collectively, “Cigna”), Plaintiffs claimed that Cigna, without consent, wiretapped their interactions on Cigna’s website by employing third-party tracking technology (“Tracking Software”) to capture various pieces of website visitor information in real time. As alleged in the Complaint, Cigna’s use of the Tracking Software permitted Cigna to capture and transmit Plaintiffs’ electronic communications while visiting its website, including constituent mouse movements, clicks, keystrokes, and page-specific URLs. On behalf of themselves and a putative class, Plaintiffs asserted, among other things, claims arising under the Electronic Communications Privacy Act of 1986 (“ECPA”) and the Pennsylvania Wiretapping and Electronic Surveillance Act (“WESCA”). Cigna moved to dismiss the wiretapping claims on several grounds, including the representation that Plaintiffs consented to the use of the Tracking Software.
In opposing dismissal, Plaintiffs argued that Cigna wiretapped their communications without their consent on the basis that the interception “began immediately upon the loading of the [w]ebsite and before [they] had any opportunity to review, much less affirmatively understand and consent to, Defendants’ statements.” The Court rejected this argument because Plaintiffs had conceded that they agreed to Cigna’s Terms of Use, which incorporated Cigna’s Privacy Notice in which it disclosed Cigna’s use of Tracking Software. By assenting to the Terms of Use and Privacy Notice, the Court found that the “unassailable conclusion is that Plaintiffs . . . [gave Cigna] permission to use the third-party tracking technologies.” Accordingly, the Court dismissed Plaintiffs’ ECPA, WESCA, and invasion of privacy claims.
Obtaining Consent Is Paramount in Defending Wiretapping Claims
Significantly, the Court found that obtaining consent after the alleged wiretapping began was sufficient to warrant dismissal. Other courts have refused to dismiss wiretapping claims where consent was obtained after the alleged interception began. Certainly, however, courts are trending towards questioning whether using Tracking Software is sufficient to plausibly plead wiretapping claims. Notwithstanding this fact, online businesses must continue to carefully review and update their privacy policies to ensure that they adequately inform consumers about data collection, use, and sharing practices. Ideally, companies should obtain consumer consent before Tracking Software begins collecting their data.
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