As Privacy Litigation Claims Expand, Companies Must Monitor Landscape Closely
As the litigation landscape continues shifting under privacy laws, “search bars have quietly become a Trojan horse in online data collection,” said lawyers Vivian Isaboke and Anthony Isola from Fisher Phillips in a blog Friday.
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Search bars have started “carrying new legal theories into the California Invasion of Privacy Act (CIPA) arena,” said the lawyers. “The legal interpretation of what constitutes “contents” of a communication is evolving under CIPA, and this issue has taken on a greater significance for website owners and operators.”
In Heerde v. Learfield Communications,"the defendants were website developers and operators of college athletic websites,” said the blog. “The Team Websites, as the plaintiffs argued, appeared to be run by the schools, but in this case, the Operators were managing them,” which violated CIPA, the Federal Wiretap Act and California constitutional privacy rights “by intercepting search terms entered into search bars built into the Team Websites and feeding those search terms to third-party tracking entities.”
The U.S. District Court for Central California allowed the CIPA claims to continue, addressing three critical questions, Isaboke and Isola said. Using precedent from the 9th U.S. Circuit Court of Appeals, “the court found the plaintiffs had a reasonable expectation of privacy regarding their search terms,” the lawyers said. Additionally, since “the court defined ‘contents’ as ‘any information concerning the substance, purport, or meaning of a communication,’ it meant that “the search terms intended to convey a communication,” according to the blog.
Finally, the court ruled the website operators were third-party eavesdroppers “where it concerned interception of the plaintiffs’ entry of search terms into the Team Websites,” as “the plaintiffs believed the Team Websites were run by the schools and their search terms were being communicated only to them,” the lawyers said.
Isaboke and Isola said that since search bar terms are considered “content of communications” and can be a valid CIPA claim, there is legal liability. “With legal theories under CIPA continuing to expand, businesses operating websites must closely examine online data collection and sharing practices,” they said. Steps to mitigate risks include data mapping, reviewing consumer-facing policies and closely monitoring privacy litigation claims.