Welcome back to our three-part series examining CIPA class actions and defenses. In Part I of this series, we provided an overview of CIPA and its recent resurgence in the age of smart speakers. Here, we review recent CIPA class actions and common violations.
CIPA Finds New Life in the Wake of the “Smart” Devices
According to a recent report, over a quarter of the adult population in the United States owns a smart speaker.[1] As smart speakers gain popularity, privacy litigation risks continue to grow. Recently-filed complaints utilize CIPA to attack the practice of recording and storing communications between a customer and a smart device such as smart phones or smart speakers.[2] In 2019 alone, we have seen a rise in the number of cases against major technology companies alleging CIPA violations related to smart devices. Below is an overview of those recent cases.
Tice v. Amazon (E.D. Cal 2019)
Filed in July 2019 in the Eastern District of California, Tice v. Amazon[3] addresses the privacy issues associated with recording the voices of those who are not Alexa-registered users. The complaint alleges that the Alexa device’s response to any individual who says the wake word violates CIPA because “the devices record communications with individuals who did not purchase the device or install the Alexa App and are not registered Alexa account holders.” The plaintiff contends that Amazon violated CIPA by recording and permanently storing and analyzing the plaintiff’s and putative class members’ voices and communications captured by Alexa devices. In response, Amazon has brought a Motion to Stay Case and to Permit Discovery Necessary for, Determination of a Motion to Compel Arbitration.
Lopez v. Apple (N.D. Cal 2019)
Apple is currently facing similar allegations involving its Siri devices in Lopez v. Apple.[4] On August 7, 2019 an iPhone user brought a CIPA action against Apple for allegedly recording the plaintiff’s voice without consent including instances where the plaintiff did not utter a “wake phrase” to activate the Siri device. The plaintiff seeks to certify a class of “all individuals who were recorded by a Siri Device without their consent from at least as early as October 12, 2011 to the present…[w]ithin the Class is a Subclass of those who are or were minor children and were recorded by a Siri Device.” On August 30, 2019, the parties stipulated to extend Apple’s time to file a response to the complaint to October 21, 2019. The case was reassigned outside the San Jose Division on September 4, 2019.
In re Google Assistant Privacy Litigation (N.D. Cal. 2019)
Google was recently named in two similar CIPA actions over its Google Home device. On September 25, 2019, the Northern District of California consolidated these cases: Kumandan et al v. Google LLC et al, and Galvan et al v. Google LLC et al.[5] In this consolidated action, the plaintiffs allege that Google unlawfully recorded voices without consent. In particular, the plaintiffs allege that people who have purchased or used Google Assistant Enabled Devices and interacted with Google Assistant have not consented to Google recording conversations where the words, “Okay, Google” or “Hey, Google” were not uttered or where no button had been pressed. The plaintiffs further allege that minors with no Google account who did not set up Google Assistant Enabled Devices have not consented to these recordings. Based on these allegations, the plaintiffs seek to certify a class of “all individuals who were recorded by a Google Assistant Enabled Device without their consent from at least as early as May 18, 2016 to the present (the “Class Period”). Within the Class is a Subclass of those who are or were minor children and were recorded by a Google Assistant Enabled Device during the Class Period.
[1] https://techcrunch.com/2019/03/08/over-a-quarter-of-u-s-adults-now-own-a-smart-speaker-typically-an-amazon-echo/.
[2] This will likely increase when California’s Consumer Privacy Act goes into effective as of January 1, 2020.
[3] Case No. 5:19-CV-01311, (E.D.Cal).
[4] Case No. 5:19-cv-04577, (N.D. Cal.).
[5] Case No. 19-cv-04286-BLF
