Privacy Perspectives: Privacy Litigation Update - The Latest on Wiretap & CIPA Pixel Litigation

·21 min·2 clips

Alex Schneider and Whitney Smith discuss the surge in wiretapping claims under a 1967 California law that carries $5,000 per violation damages.

The episode is an interview between host Alex Schneider, Special Counsel, and guest Whitney Smith, a litigation partner, both from Kelley Drye's Advertising and Privacy Law Group. They focus on privacy litigation trends, specifically the rise in wiretapping claims under the California Invasion of Privacy Act (CIPA). Schneider introduces the topic by distinguishing these claims from those under newer state privacy laws like the CCPA, noting CIPA's strong damages component of $5,000 per violation. He mentions Senate Bill 690, a proposed amendment to CIPA that would add a commercial business purpose exception, which was paused but may be reintroduced. Smith then details defense strategies, emphasizing the importance of scrutinizing the specific information alleged to be collected, as courts have pushed back on claims involving only an IP address. She discusses procedural defenses like standing, arbitration clauses, and the one-year statute of limitations under CIPA. The conversation covers consent mechanisms, noting varying court rulings on the sufficiency of privacy policy links versus affirmative consent actions like clicking 'accept'. Smith explains that successful defense outcomes range from convincing opposing counsel to drop demands to evaluating settlement versus litigation, with plaintiffs sometimes seeking nuisance-value settlements. She confirms the issue extends beyond California to other two-party consent states and the Federal Wiretap Act. When asked about prevention, Smith advises companies to provide clear notice, maintain accurate privacy policies, limit sensitive data collection, and regularly audit their technology implementations. The episode concludes with Smith highlighting the pending California appellate case that will address whether CIPA's pen register provisions apply to modern internet technology.

As heard by us

A practical look at how old privacy laws keep landing on modern tech.

Privacy litigation keeps finding new life in older statutes, and the discussion is strongest when it stays close to that tension. Whitney Smith and Alex Schneider walk through wiretapping claims, including CIPA theories built around pixels, cookies, and tags, then turn to the…

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Need a fast read on wiretapping claims and consent banners?

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