‘Decades-Old’ Wiretapping Laws Being Revived to Prosecute New Privacy Claims: Analysis
Numerous new website technologies and tools allow companies to more effectively interact with their customers, but new consumer privacy suits “continue under decades-old wiretapping statutes,” said a Coblentz Patch analysis Tuesday. The tools include chatbots, session recording software, tracking pixels…
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and cookies, it said. All are “immensely helpful in engaging with and identifying user experiences, and they help improve and promote a company’s business operations,” it said. But plaintiffs’ attorneys recently argued the use of these website technologies -- especially when provided or facilitated by a third-party vendor -- “constitutes violations of wiretapping and eavesdropping statutes,” it said. Under these federal and state statutes, it’s a violation “if an individual uses a recording device to eavesdrop or intercept a confidential communication without the consent of the parties,” it said. These statutes historically were used against individuals secretly listening in on private phone conversations, it said. But plaintiffs’ attorneys “have revived these statutes to claim that companies are violating these laws through the use of website technologies,” and some courts “have allowed some of these claims to pass the motion to dismiss stage,” it said. As more of these cases are making their way through the courts, “we are able to see patterns in how courts are addressing these claims,” it said. There appears to be a distinction emerging between claims that are allowed to proceed past the motion to dismiss stage and those that are not. Chatbots and session recording technologies used only to aid in servicing the website as a service provider “have been found insufficient to state a claim under the wiretapping statutes,” it said. By contrast, the use of these tools to collect user data that a third-party vendor is permitted to use for other purposes, including its own business purposes or with services to other companies, “has been found to be sufficient to pass the motion to dismiss hurdle,” it said.