As our readers know, lawsuits alleging illegal wiretapping claims against companies that collect consumers' data continue unabated. Below, we discuss a recent favorable ruling dismissing California Invasion of Privacy Act ("CIPA") wiretapping claims against an e-commerce company.
California Federal Court Dismisses Wiretapping Claim
In Briskin v. Shopify Inc., Plaintiff asserted, among other things, illegal wiretapping claims against Shopify in violation of CIPA. While purchasing fitness apparel from a Shopify merchant, Plaintiff claimed that Shopify wiretapped his communications by collecting sensitive private information (including his name, street address, and credit card number) without his consent. After the Complaint was amended twice, Shopify moved to dismiss arguing that Plaintiff's wiretapping claim failed to plausibly plead a cause of action on the grounds that it: (1) lacked the requisite intent; (2) was an authorized party to the communications; and (3) did not read the "contents" of the communications "while in transit."
In dismissing Plaintiff's wiretapping claim, the Court found that the Complaint failed to adequately allege that Shopify: (1) willfully wiretapped Plaintiff's communications because Shopify requires users of its platform to provide consent; and (2) read Plaintiff's communications while "in transit" because the relevant data was encrypted prior to being sent to Shopify's servers and only read/analyzed after Shopify received it.
What Should Your Company Do If Faced With Wiretapping Claims?
This ruling serves as the latest example of courts continuing to view these wiretapping claims with skepticism. Despite this current trend, CIPA wiretapping claims will likely continue to be brought against internet commerce companies because the statute allows for the recovery of: (1) $5,000 per violation; or (2) three times the amount of actual damages, if any; and (3) injunctive relief. As a result, wiretapping claims, especially when they are asserted on a class action basis, can prove to be quite expensive.
Defending against wiretapping claims requires aggressive and experienced counsel. The attorneys at Klein Moynihan Turco ("KMT") have years of experience assisting companies with federal and state marketing and consumer privacy law compliance. Importantly, the KMT litigation team has successfully defended numerous businesses faced with federal and state wiretapping claims. If your company has been served with a wiretapping lawsuit and needs litigation defense counsel, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
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