CIPA Privacy Litigation Attorney in Silicon Valley, California
CIPA Demands Involving Meta Pixel and Facebook
Recently, a wave of lawsuit threats has been sent out by plaintiffs’ privacy law firms to small and medium-sized California businesses and non-profits. The threats allege violations of the California Invasion of Privacy Act (“CIPA”). Prominent among those law firms is Swigart Law Group, APC, based in San Diego.
CIPA does not recognize retroactive consent
CIPA makes it unlawful for a person to intentionally, and without the consent of all parties to a communication, “eavesdrop upon or record the confidential communication” using an “electronic amplifying or recording device.” In California, all parties to a communication must consent to its recording. Crucially, that has been interpreted to require consent before the eavesdropping occurred; consent after the fact was held insufficient in the 2022 Ninth Circuit case of Javier v. Assurance IQ, LLC.
After that, plaintiffs’ firms were off to the races. Many companies unknowingly involve instantaneous sharing of “private” data to a third-party software service. The service may enable such things as a consumer’s online navigation of a hotel reservation. CIPA demands often allege that online companies and their third-party providers “eavesdropped” on consumers by automated means. See Cal. Penal Code Section 630 and following.
Money Demands Can Mount Quickly
The statute allows up to $5,000 “per violation” under Section 637(2). Thus, if 20 consumers are found to have visited a target defendant’s website, triggering third-party sharing, the plaintiff’s firm may make an initial demand of $100,000. The firm purports to represent legitimate consumers, even if the token plaintiff may be a “tester,” hired by the law firm.
Meta Pixel Claims and Defenses
Meta pixel technology involves a piece of software code that allows businesses to track user activity on their websites, measure ad campaign effectiveness, and create targeted audiences for future advertising. The Swigart firm, among others, have recently focused on Meta pixel technology and Facebook. Its form letters accuse the multiple target companies of utilizing:
“tracking software, including Meta Pixel, that allows Respondent to embed a JavaScript in the HTML code of Respondent’s website that intercepts, tracks, stores, and analyzes Claimant’s interactions with Respondent’s website. By embedding the Meta Pixel within its website, Respondent aided Meta dba Facebook to intercept, store, and analyze Claimant’s electronic communications for the purposes of data mining and targeted advertisement.”
Defenses exist to resist such claims. Knowledge of some or all of these defenses can arm the targeted company with the means either to fight or negotiate effectively.
If you receive a demand letter such as this, email us at payne@bobpayne.com for assistance.
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Robert Payne is founder of Payne IP Law, in San Jose. www.bobpayne.com. He practices intellectual property and privacy litigation and trademark prosecution for small- and medium-sized businesses..