In the past couple of years, we have seen an explosion in the number of demand letters and lawsuits involving alleged violations of the California Invasion of Privacy Act (“CIPA”). Oftentimes, recipients of a CIPA demand feel helpless, lacking a sense for both what the claimed wrongdoing is and how to appropriately defend themselves. A CIPA action may take a variety of forms, and having a basic understanding of what one is up against can set you up for a greater likelihood of success.
What Is a CIPA Action?
Broadly speaking, CIPA is a statute that was enacted some 60-plus years ago, intended to protect against certain forms of privacy invasion. Today, the law is being applied in a manner that typically involves allegations of unauthorized eavesdropping or the illegal use of a pen register or trap and trace device in connection with operating a website or deployment of certain website functionalities (e.g., chatbots or session replay software). Most often, CIPA matters concern a website operator’s utilization of cookie technology that the website visitor claims was used either to: (1) allow a third-party (such as Meta or TikTok) to eavesdrop on communications the visitor sent to the website; and/or (2) determine the visitor’s location.
Most commonly, a CIPA action will begin with receipt of a demand letter that purports to detail the alleged CIPA violation in conjunction with a settlement demand presented under threat of legal proceeding. Many times, a strongly-worded response to the demand letter prepared by experienced counsel which demonstrates that the allegations have no merit serves to stop the CIPA action in its tracks.
Individuals invoking an arbitration provision in the website’s Terms and Conditions have resulted in a sizeable percentage of CIPA actions proceeding to arbitration. A smaller, but still significant, percentage of CIPA matters are litigated as formally court-filed lawsuits. A CIPA case may find its way into court after a company chooses to ignore the arbitration paperwork (a decision that we strongly recommend be made only after consulting with an attorney) or with the unanticipated initial filing of a legal complaint, most often in cases involving alleged use of a pen register or trap and trace device,
What To Do When Threatened With a CIPA Action
Despite their best efforts, plaintiffs’ or claimants’ counsel do not always have all of the material facts or, more particularly, readily understand the factual and legal defenses which may apply to your case. There are many defenses that may apply to your specific CIPA matter that experienced counsel can use to successfully resolve your dispute. It is critical, therefore, that you contact attorneys knowledgeable in privacy law who have experience litigating CIPA matters immediately upon receipt of a CIPA-related demand. Doing so provides the best chance for success as they help guide you through the defense process and assist you with taking the necessary remedial measures to mitigate the risk of receiving a CIPA action in the future.
The attorneys at Klein Moynihan Turco (“KMT”) have a wealth of experience in counseling clients on how to comply with the rules and regulations governing online data privacy. In addition, over the years, the KMT litigation team has defended countless businesses that have been the subject of CIPA actions. If your company has a presence on the Internet, or has received or been threatened with a CIPA-related matter, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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