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Ninth Circuit Rules That Screen Recording Technology May Constitute Wiretapping

Bald man with a goatee wearing a suit and listening to recorded conversations on a reel-to-reel tape recorded and holding a pencil in a dark room

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 case centers on a plaintiff who visited a website to request an insurance quote which required him to answer demographic and medical history questions. After filling out this information, he clicked a “View My Quote” button under the auspices of agreeing to the insurer’s privacy policy. That privacy policy included consent to be recorded with TrustedForm. Because the plaintiff consented to have his interactions with the website recorded, the district court granted a defense motion to dismiss the complaint for failing to state a claim. However, the Ninth Circuit reversed this decision because the screen recording began before the plaintiff agreed to allow his screen to be recorded. The Ninth Circuit did not determine that the consent applied retroactively to the recording that occurred before the consent was given and thus the usage of TrustedForm constituted illegal wiretapping under the CIPA.
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.