California Invasion Of Privacy Act Violations Aimed At Online Retailers – Privacy Protection

California Invasion of Privacy Act (CIPA) has become a
focal point in recent legal battles, particularly within the retail
industry. As retailers increasingly adopt technologies
like session replay and chatbots to enhance
customer experiences, they i،vertently tread into murky legal
waters. These technologies, while valuable for optimizing websites
and addressing customer inquiries, have faced a barrage of lawsuits
and threats. Claimants argue that using these tools wit،ut
obtaining customer consent amounts to wiretapping or using a
“pen register.”

Session-replay software records specific customer
interactions on websites, aiding in bug fixes, issue investigation,
and market optimization. However, these tools may fall under
so-called “two-party consent” statutes. For instance,
the California Penal Code § 631 (a) requires consent
from all parties involved in a communication. Retailers across
various industries—clothing, finance, jewelry, and
more—have found themselves in the crosshairs of these
lawsuits.

At least 40 lawsuits originating in California have been
filed involving CIPA since May 31, 2022. May 2022 was when the U.S.
Court of Appeals for the 9^th Circuit ruled
in Javier v. Assurance IQ that, under CIPA,
allparties to a “communication” must consent to that
communication. Essentially finding that if a website does not
request consent prior to a consumer engaging with a website,
recording of any kind would be wit،ut valid consent.

As such, retailers with an online presence need to review the
use of technologies such as session replay and chatbots and ensure
there is a mechanism for consent from the consumer prior to
interaction to ensure compliance with CIPA and other statutes that
require two-party consent when recording communications.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.

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