A California legal research and education service recently spoke with Harris Beach Murtha attorney Alan Winchester about a change to California’s Invasion of Privacy Act.
The recently signed amendment to the act was designed to curb class actions alleging online marketing analytics tools track website visitors without their consent. CEB, a legal research and education service in California that has operated for more than 75 years, published an article about how plaintiffs seem to be finding a different route to file lawsuits under the state’s Invasion of Privacy Act.
The amendment removed the private right of action from the act’s Penal Code Section 638.51, which prohibits using pen registers or trap-and-trace devices without consent or a court order. Instead of filing lawsuits for violating that provision, Alan, leader of the firm’s Cybersecurity Protection and Response Practice Group, told the publication plaintiffs are now filing claims for violation of Penal Code Section 631, which prohibits wiretapping without consent, and Penal Code Section 632, which prohibits eavesdropping or recording confidential communications without consent.
They’re alleging online pixels and analytics tools intercept communications, he said.
“From [what] I am seeing they are pre-emptively starting to characterize the same behavior they used to prosecute under 638.[5]1 to now violate Section 631 or ‘wiretapping’ where the message is recorded rather than the phone number or IP address under a pen register claim,” he said.
He added that consent is still the top way to defend against such complaints and businesses should review their privacy policies and website disclosures and consider implementing cookie management tools to control the data transmitted when users visit their websites.
“Companies should meet with their marketing teams to understand what information their websites are actually capturing and whether it is really needed. These tools are often free and are not always understood or configured correctly,” he said. “Given the potential liabilities, I think it behooves companies to bring these websites into the more general information governance procedures that often overlook corporate websites.”
Read the full article for more information on what Alan and others said about the new California law.
