Ninth Circuit Judge Questions Continued Viability of Internet Wiretapping Claims

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Readers of this blog may recall a piece in which we discussed an unfavorable Ninth Circuit California Invasion of Privacy Act (“CIPA”) internet wiretapping decision. Interestingly, the Ninth Circuit recently weighed in again on similar internet wiretapping claims, and this time, it reached a very different outcome. Below, we discuss the decision’s impact and its implications on present and future internet wiretapping claims.  

Are Internet Wiretapping Lawsuits Shakedowns? 

At least one Ninth Circuit judge thinks that the possibility exists. In Gutierrez v. Converse Inc., Gutierrez alleged that Converse violated CIPA by wiretapping her internet communications with its website chat feature. Because the website chat function was operated by a third-party, Gutierrez asserted that Converse violated CIPA by illegally wiretapping his internet communications. The district court found that no disputes of material fact existed because Gutierrez failed to provide sufficient evidence that the third-party: (1) made an unauthorized connection with Gutierrez’s communications; and (2) read or attempted to read the contents of her communications. On appeal, the Ninth Circuit panel unanimously affirmed the granting of summary judgment for Converse. While two of the judges affirmed the district court on evidentiary grounds, the third judge sitting on the panel wrote a separate, concurring opinion which may finally put an end to CIPA wiretapping claims.  

In his concurrence, Judge Bybee looked at the plain language of the statute and concluded that CIPA’s wiretapping provisions do not apply to internet communications. Despite amending CIPA on at least three occasions, Judge Bybee noted that the California legislature had not updated CIPA’s wiretapping clause to account for advances in technology, such as smartphones, which it certainly could have. Judge Bybee then questioned why plaintiffs, like Gutierrez, “contort § 631(a) [CIPA] to apply to internet communications” when plaintiffs can seek recourse under the California Consumer Privacy Act (“CCPA”). Contrasting the private rights of action allowed for under CIPA and the CCPA, Judge Bybee explicitly identified the reason that plaintiffs like Gutierrez assert CIPA wiretapping claims by stating “[i]t may be about the money – CIPA allows plaintiffs to recover $5,000 per violation compared to just $750 per violation under the CCPA. In a class action like this one, the difference in total recovery (and attorneys’ fees) could be millions of dollars.” As Judge Bybee stated, if the California legislature wanted to apply CIPA’s wiretapping provision to the internet it could have – it is not the Court’s responsibility to do the California legislature’s job.  

What Does This Mean for Future Internet Wiretapping Claims? 

Although this unpublished decision may have limited precedential value, Judge Bybee’s concurrence is a breath of fresh air for online companies. The opinion echoes a refrain that the attorneys at Klein Moynihan Turco (“KMT”) have argued since internet wiretapping lawsuits began – the plain language of CIPA does not extend to internet communications. The impact of this opinion remains to be seen, and it must be noted that the district court evaluated and ruled on Gutierrez’s claims at the summary judgment stage, which requires plaintiffs to put forth evidence substantiating their claims. Although this opinion is unlikely to stop internet wiretapping lawsuits from being filed, it may well lead other California federal judges to agree with Judge Bybee and rule that CIPA’s wiretapping clause does not apply to internet communications.  

The use of third-party tracking software (including pixels and web beacons) is nearly ubiquitous, and online businesses must frequently review and update their privacy policies to ensure that they inform consumers about data collection, use, and sharing practices. Because federal and state privacy laws are constantly evolving, companies must carefully review their websites to ensure that they are providing adequate notice to (and, ideally, obtaining consent from) website visitors of the use of third-party tracking software.  

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.

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