Posted by Chris Alarie on Mon, 10/24/2022 - 12:16
Back in June, we covered an unusual case, Javier v. Active Prospect, in which the Ninth Circuit issued an unpublished opinion in which it accepted a plaintiff’s argument that the use of Active Prospect’s TrustedForm screen recording technology to capture consumer consent could constitute illegal wiretapping under the California Invasion of Privacy Act (CIPA). In a webinar that we conducted with him, Eric Troutman of TCPAWorld predicted that this could serve as a model or inspiration for further CIPA wiretapping claims. Recent CIPA claims have supported this prediction with one key change: plaintiffs and litigators now seem to be focusing on chat bots as the source of alleged CIPA violations.
These new CIPA class actions allege that consumer interactions with website chat bots constitute a recording of conversations in violation of the CIPA’s wiretapping prohibitions. As with the Javier case, these claims seek to exploit the CIPA’s combination of statutory damages, class action certifiability, recovery of attorneys’ fees, and astronomical $5,000-per-violation penalties. It Is possible that a successful plaintiff could argue that each chat bot interaction is a separate violation, entitled to a $5,000-per-interaction award. Between the Javier case and these chat bot cases, it seems clear that litigators are probing for ways to sue marketers and marketing-related businesses under the CIPA, which should be a source of significant caution.