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Screen Recording on Websites is Considered Wiretapping Under California Law

The 9th Circuit Court of Appeals recently reversed a District Court case that dismissed a lawsuit for illegal wiretapping by using screen capture technology without getting prior consent from the consumer.

What happened?

In the case of Javier v. Assurance IQ, LLC, Florentino Javier appealed a district court’s decision stating that consent to be “wiretapped” via computer after the recording already took place was sufficient under California Law.

Assurance is an insurance platform that owns and operates, a website where users can request life insurance quotes from Assurance and its insurance partners. Assurance uses a product called “TrustedForm,” created by ActiveProspect, to record user interactions with the website.

Javier visited in January 2019 and provided information to request an insurance quote. Unbeknownst to him, TrustedForm recorded every second of his interaction with the website, creating a video recording. After completing the questionnaire, Javier clicked a button stating he agreed to Assurance’s Privacy Policy to be recorded.

Javier filed a class action lawsuit against Assurance and ActiveProspect, alleging that they violated Section 631(a) of the California Invasion of Privacy Act (“CIPA”), which makes it illegal to intercept or record communications without the consent of all parties. The district court dismissed Javier’s complaint, finding that the later consent to Assurance’s privacy policy made the conduct legal under Section 631(a).

The Ninth Circuit Court of Appeals reviewed the case and disagreed with the district court’s interpretation. They noted that the California Supreme Court had previously held that CIPA’s provisions should be interpreted in favor of broad privacy-protecting purposes. Moreover, other statements by the California Supreme Court indicated that prior consent was required for wiretapping and monitoring, even if the text of the statute did not explicitly state so.

The Ninth Circuit concluded that the California Supreme Court would likely interpret Section 631(a) to require prior consent, and therefore, Javier’s allegations of not providing express prior consent were sufficient to proceed in a lawsuit that his communications were recorded without valid consent. Consequently, the Ninth Circuit reversed the district court’s finding that retroactive consent was sufficient under California Privacy Laws.

What is wiretapping?

California law provides protection for its citizens under a section of the law called the California Invasion of Privacy Act. These laws protect your rights and ensure that no one can record you without your consent. Usually this applies to telephone conversations (think about when calling a company you always hear a recorded voice stating “this call may be monitored or recorded for quality assurance purposes”).

What does this case mean?

Basically, these practices of recording screen interactions constitute illegal wiretapping under California law. The Court of Appeals found that prior notice is required for this and that an agreement to a privacy policy at the end of the interaction is insufficient to obtain consent to screen record your interactions with a website or any other methods of wiretapping.

Websites that rely upon technologies that monitor and record screen data without prior consent are now at risk of both civil and criminal liability under the California Invasion of Privacy Act.

What do I do if I have been a victim of wiretapping?

If you have been recorded without your consent, or you were only notified that you were being recorded after the fact, you do have remedies under the California Invasion of Privacy Act. The law allows you to bring a civil action against the person or business who committed the violation for the greater of:

  • $5,000 per violation, or
  • 3x the amount of any damages you sustained as a result of the invasion of privacy

If you believe you are the victim of an illegal wiretap or any other invasion of privacy, contact The Bourassa Law Group today for a consultation to ensure that your rights are protected.

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