What does the TrustedForm wiretap case say exactly?
Javier subsequently learned about the TrustedForm recording of his website visit and sued Assurance IQ and ActiveProspect for violations of California’s wiretapping statute. In his complaint, Javier alleges that TrustedForm grants ActiveProspect, a third party to the conversation, a way to monitor and record his communications with Assurance IQ without his prior consent. In response, ActiveProspect moved to dismiss the complaint arguing, among other things, that: (1) Javier provided adequate consent to the recording; and (2) ActiveProspect is not a third party covered by the wiretapping statute. The trial court ultimately dismissed the case, finding that Javier’s retroactive consent to the recording was sufficient. Notably, the trial court did not address the “third party” issue in its ruling.
Why does the TrustedForm case matter to your business?
It is not hard to see the sweeping implications that the Javier decision could have for the telemarketing industry. TrustedForm and similar services that record a consumer’s registration flow provide an invaluable defense against TCPA claims and regulatory inquiries. Developing software internally to perform this “consent capture” function would prove expensive and difficult for many companies. Proving valid TCPA consent without a recording or screenshots of a consumer’s progress through a given consent flow would be much more difficult, or, at least, much less convincing without the recording services that companies like ActiveProspect provide.
Third, the pivotal argument unaddressed in Javier concerns ActiveProspect’s status as a third party (or not) under the wiretap statute. In another case, a California federal court found that a web hosting company that stored user session data (including recording mouse clicks and keystrokes) solely for website improvement (as opposed to selling lead information to advertisers) was not a third party under the wiretap statute. The upshot of the ruling is that if a business uses session recordings solely to prove TCPA consent, then it has a strong argument that the third-party screen recording software company is not a third party, but instead an agent of the website operator.
Hire experienced telemarketing and privacy attorneys.
Today, collecting consent and personal information through a web form is almost universal. But the different types of consent that a business must obtain and in what order can be a tangled knot. Hiring experienced telemarketing and privacy attorneys can save your business the expense and headache of trying to resolve these issues on your own. The attorneys at Klein Moynihan Turco (“KMT”) have years of experience in all things telemarketing and privacy law. KMT can assist businesses in updating their Privacy Policies and maintaining TCPA compliance.
If you need assistance with updating your telemarketing practices and procedures or with website Privacy Policies, please email us at firstname.lastname@example.org 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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