Gap CIPA Lawsuit Dismissal Shows Courts Increasingly Skeptical of Internet Wiretapping Claims
A recently dismissed case involving the California Invasion of Privacy Act (CIPA) and email tracking shows courts are increasingly questioning whether the old statute applies to internet communications, said privacy lawyer David Klein in a blog post Friday. However, CIPA lawsuits will likely continue despite this growing trend, the Klein Moynihan attorney said.
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In the case, plaintiff Efren Ramos sued clothing retailer The Gap claiming it violated CIPA and invaded customers’ privacy when it used third-party tracking software embedded in marketing emails to track consumers' message interactions.
On July 29, the U.S. District Court for Northern California ruled it "simply is not convinced by Plaintiff’s characterization of the click of the embedded URL as a communication between Plaintiff and Defendant," and tossed the suit.
"California courts now appear to be viewing CIPA claims, in the context of internet communications, with increased skepticism," Klein said. "Nevertheless, given the lack of uniformity amongst California courts, the plaintiffs’ bar will continue filing CIPA email tracking lawsuits unless and until California courts establish a bright-line rule for internet communications."
In this case, the court found that the clothing chain wasn't "directly liable under CIPA" since it "cannot, by definition, wiretap its own communications, and email open rates are not contents of communications under CIPA," said Klein: Also, the court "found that the first clause of CIPA’s wiretapping provisions did not apply to internet communications."
Additionally, Klein noted that the court wasn't "persuaded that users’ clicks on URLs contained within [The Gap] emails were contents of communications," nor did it agree with Ramos' argument that "the URLs themselves revealed contents of communications such that the third-party could read the actual emails."
With this ruling and the 9th U.S. Circuit Court of Appeal's recent decision in Gutierrez v. Converse (see 2507210019), courts are beginning to derail CIPA suits more frequently, Klein said, though it has not slowed the number of lawsuits filed.
Therefore, "companies should carefully review their websites to ensure that they are providing adequate notice of the use of third-party tracking tools," as well as "regularly review and update their privacy policies to reflect changes to their data collection, use and sharing practices," he said.