Readers of this blog likely know about the wave of consumer privacy litigation directed at online companies’ collection of consumer data. A litany of these cases are brought by Swigart Law Group, APC (“Swigart Law”), a law firm based out of California. According to its website, Swigart Law “is a consumer protection and privacy law firm that helps people who have been injured by online companies, banks, employers, drug and medical companies, or large corporations.” Because California has comprehensive privacy laws, Swigart Law tends to target companies conducting business in the State of California for alleged violations of the California Invasion of Privacy Act (“CIPA”).

Swigart Law Wiretapping Claims

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.” Because California is an all-party consent state, all parties to a communication must consent to its recording. The crux of CIPA demands generally allege that online companies “eavesdrop” on consumers when they utilize, for example: (1) third-party website visit recordation technology; (2) tracking pixels to monitor consumer behavior on their websites; and/or (3) chatbots.

Recently, many of these wiretapping claims have failed to gain traction. As a result, Swigart Law and other plaintiffs’ firms have taken aim at another provision of CIPA, which prohibits the use of pen registers and trap and trace devices. A “pen register” is defined as a “device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, but not the contents of a communication.” A “trap and trace” device is the functional equivalent of a pen register, except that it captures incoming transmissions, rather than outbound transmissions, like those captured by pen registers. With certain limited exceptions, installation or use of a pen register or trap and trace device requires a court order or user consent.

Other states have wiretapping laws similar to that of California. For example, the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“WESCA”) prohibits, among other things, the intentional interception, disclosure or recording of any wire, electronic or oral communication without the consent of all parties. Like California, Pennsylvania is also an all-party consent state. In addition, the State of Washington requires the consent of all parties to legally record in-person or telephone conversations.

All three jurisdictions’ wiretapping laws permit: (1) private rights of action; (2) recovery of actual damages, or specific civil penalties in the absence of actual damages; and (3) recovery of reasonable attorneys’ fees and costs.

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