While the decision is certainly not favorable to defendants in these lawsuits, it is only one of what will be many decisions out of various California state and federal courts over the next several months.
Entering the conversation, the United States District Court for the Central District of California recently denied a motion to dismiss claims alleging that a website’s chat features and use of session replay software violate the California Invasion of Privacy Act (CIPA). Notably, this court rejected a forum selection clause in the website’s terms of use and went on to hold that allegations that the plaintiff shared “personal information” in the chat were sufficient to maintain a claim.
On February 3, 2023, Judge Sunshine S. Sykes of the Central District of California issued an opinion and order in Byars v. Goodyear Tire and Rubber Co., denying Goodyear’s motion to transfer venue or, in the alternative, to dismiss for failure to state a claim. Plaintiff Arisha Byars alleged that Goodyear violated Sections 631(a) and 632.7 of CIPA by using a third-party company to record and transcribe the conversation she initiated in the chat feature on Goodyear’s website using her smartphone. Goodyear moved to transfer venue based on a forum selection clause included in the terms of use on Goodyear’s website.
Judge Sykes denied the motion to transfer, concluding that the plaintiff did not consent to the forum selection clause in Goodyear’s terms of use. While Judge Sykes recognized that website hosts and users can form contracts even when users do not have actual notice of the terms of the contract, she ultimately held that Goodyear failed to show that users had constructive notice of the terms of service. Users visiting Goodyear’s website encounter a footer cookie banner that links to its privacy policy page, which then links to the terms of service. Additionally, Goodyear’s website makes the terms of use and privacy policy available at the bottom of every webpage. The court found that these website features did not put a reasonably prudent user on inquiry notice of the contract.
In declining to dismiss the plaintiff’s Section 631(a) claim, Judge Sykes rejected Goodyear’s argument that the complaint failed to alleged sufficient facts showing that (1) the alleged interception captured the contents of communications and (2) the messages were intercepted in transit. CIPA protects the “contents” of communications, not recorded information, and the court held that the plaintiff had plausibly shown that Goodyear intercepted the contents of her communication in chat by alleging that users share sensitive personal information in the chat feature. Judge Sykes held that the plaintiff had also plausibly alleged that the communications were intercepted in transit by claiming that the interception occurs “in real time.”
Additionally, Judge Sykes rejected Goodyear’s argument that the plaintiff does not a state a claim under Section 632.7 because she failed to allege that the conversation between her and Goodyear was transmitted between two cellphones. Section 632.7 prohibits intercepting or recording “a communication transmitted between two cellular radio phones.” Cal. Penal Code § 632.7 (emphasis added). Goodyear argued that the plaintiff’s claim must fail because the conversation occurred through an online chat communication, and the plaintiff is therefore unable to establish that Goodyear was communicating via a telephonic device. However, the court held that the plaintiff is not required to allege the type of telephonic device Goodyear used to participate in the conversation.
While the decision is certainly not favorable to defendants in these lawsuits, it is only one of what will be many decisions out of various California state and federal courts over the next several months. One thing is certain, however: This decision will embolden potential plaintiffs and we expect that the number of CIPA website chat feature wiretapping lawsuits will continue to rise.
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