Our readers are familiar with claims alleging that the use of third-party tracking tools on consumer facing websites violates the California Invasion of Privacy Act’s (“CIPA”) wiretap statute. Facing CIPA wiretapping claims similar to those that we have discussed frequently, a predictions-based company recently filed a motion to dismiss in a California federal court. Below, we discuss the wiretapping claims, the arguments submitted in support of the motion to dismiss, and recent developments for those facing CIPA wiretapping claims.
CIPA Wiretap Claims and Defenses Discussed
Plaintiff, on behalf of himself and a putative class of consumers, alleged that Defendant illegally wiretapped their communications when they interacted with Defendant’s website. By deploying third-party analytics tools without adequate notice and consent, Plaintiff asserted that Defendant violated the Electronic Communications Privacy Act (“ECPA”) and CIPA’s wiretapping and eavesdropping statutes. In response, Defendant moved for dismissal for five distinct reasons: (1) Plaintiff consented to data collection by creating an account, accepting the Terms of Use, and Privacy Policy; (2) Plaintiff did not suffer a concrete injury; (3) the Complaint did not allege that the contents of Plaintiff’s communications were intercepted; (4) as a party to its own communications, Defendant was entitled to invoke the party exception under the ECPA and CIPA, which precluded wiretapping liability; and (5) Plaintiff’s interactions on Defendant’s website were not confidential communications. According to Defendant, before accessing Defendant’s platform, users must create an account. By creating an account, users also must accept, among other things, Defendant’s Terms of Use and Privacy Policy, which disclosed Defendant’s data collection and its use of third-party tracking software. Because Plaintiff alleged in the Complaint that he “placed numerous bets” on Defendant’s platform, Defendant argued that Plaintiff agreed to his data being collected and his communications being shared with the subject third parties.
What Can You Do to Defend Against CIPA Wiretap Claims?
With California’s new law eliminating the private right of action for pen register and trap and trace claims, we anticipate a migration back to traditional CIPA wiretapping claims. Unless and until a comparable law is passed which addresses these traditional wiretapping claims, CIPA wiretapping lawsuits will persist given that CIPA is such a lucrative statute for the plaintiffs’ bar (the statute allows for, among other things, $5,000 per violation).
By hiring experienced counsel, companies can mitigate against CIPA wiretapping and other consumer data privacy claims. The attorneys at Klein Moynihan Turco (“KMT”) have years of experience assisting companies with federal and state marketing and privacy law compliance. Importantly, the KMT litigation team has successfully defended numerous businesses in federal and state regulatory proceedings, wiretapping lawsuits, and alternative dispute matters. If your company has received a CIPA wiretap demand or is the subject of a CIPA-related lawsuit, 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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