The California Invasion of Privacy Act ("CIPA") and the Massachusetts Wiretap Act ("MWA") are state statutes which prohibit the unlawful recording of communications. As our readers can guess, CIPA and MWA originally were enacted to address state criminal law enforcement's wiretapping of conversations. In the last few years, however, the Plaintiffs' Bar has seized on the broad language of some state statutes to bring illegal wiretapping claims against companies that use third-party tracking technology (without notice and consent) to collect consumer data while visiting a website. Below, we discuss California and Massachusetts' state wiretapping statutes in more detail, including their similarities and differences.
CIPA and MWA Compared
California State's wiretapping statute is codified at CIPA Section 631(a), while Massachusetts State's wiretapping statute is codified at G. L. c. 272 § 99. Both statutes make it unlawful to intentionally or willfully wiretap or intercept a wire or oral communication. Under California State's wiretapping statute, the consent of all parties is required to record a communication. However, the term "consent" is noticeably absent from Massachusetts State's wiretapping statute. Instead, the MWA makes it unlawful "to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device." The use of the word "secretly" is significant and, in fact, Massachusetts' highest court held that "[b]ecause the defendant knew that his words in the interview room were subject to being recorded, the actual interception of his words was not unlawful."
Both jurisdictions' wiretapping statutes impose criminal and civil penalties for illegal wiretapping and allow for a private right of action. Under CIPA, a civil claimant may recover the greater of: (1) $5,000 per violation; or (2) three times the amount of actual damages. Under the MWA, a civil claimant may recover: (1) actual damages, but not less than $100 per day for each day of violation or $1,000, whichever is higher; and (2) punitive damages. Both state wiretapping statutes permit the recovery of reasonable attorneys' fees.
What Do State Wiretapping Laws Mean for Your Business?
Readers of our blog are aware that Massachusetts' highest court recently dealt a significant blow to future third-party tracking technology wiretapping claims that may be brought in the State. It is unclear what effect this decision will have on future Massachusetts State Internet wiretapping claims, but it should be noted that the decision is specifically limited to companies operating in Massachusetts. While the decision is favorable for industry, website tracking claims will continue to present challenges for online businesses in states such as California, and other states that require all parties to a communication to consent to its recording. In short, companies should anticipate that illegal wiretapping claims will continue, especially in jurisdictions such as California.
If your website uses software to track consumer interactions, your company should consider reviewing: (1) its data collection technology; (2) if, when, and how notice of collection, or consent to collect, and use such consumer data is effectuated; and (3) with whom your company shares this information. If your company is named as a defendant in a wiretapping lawsuit, it is imperative that you evaluate whether you have viable defenses. Failing to do so may result in lengthy and costly litigation that easily could have been avoided.
The attorneys at Klein Moynihan Turco ("KMT") have been leading the way in: (1) defending companies against state consumer wiretapping claims; and (2) advising clients on how to comply with various state wiretapping laws. KMT's attorneys are readily available to assess your company's current data collection practices and help protect against future wiretapping allegations. If your company is named as a defendant in a wiretapping lawsuit, our first-rate litigation defense team is available to use its experience to spearhead the defense of your case.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
