Posted by Chris Alarie on Fri, 06/10/2022 - 08:16
A recent ruling by the Ninth Circuit Court of Appeals in a California Invasion of Privacy Act (CIPA) class action—Javier v. ActiveProspect—classified a screen recording technology as potentially being an illegal form of wiretapping, with deleterious possible effects for widely used Telephone Consumer Protection Act (TCPA) compliance efforts. While the court is careful to stipulate that its “disposition is not appropriate for publication and is not precedent,” it opens up potentially severe consequences for callers in that ActiveProspect’s widely used TrustedForm technology would no longer be acceptable for capturing consumer consent for TCPA purposes and could form the basis for extremely punitive CIPA litigation.
The practical difficulties of requiring consent to record a consumer’s screen be given in order to record the screen usage (including the act of consenting to being recorded) should seem obvious. But the Ninth Circuit did not seem to be bothered by this sort of self-contradictory logic.
The potential consequences of this decision are enormous. The CIPA contains penalties of up to $5,000 per violation and complaints can be filed as class actions. Additionally, the way this decision undermines the use of TrustedForm and similar technologies creates enormous difficulties for marketers that wish to use such technology (or purchase leads from businesses that use this technology) in order to have a record of consumer consent for TCPA purposes.
Fortunately, this decision is unpublished and not currently serving as precedent. Whether or not it does actually become precedent depends on the vicissitudes of the district courts and perhaps the California Supreme Court. That being said, the potential significance of the ruling means that this case bears further watching. It was a topic of discussion in our recent webinar and will be something that we continue to monitor.