iI’m going to post this CIPA case on TCPAWorld.com instead of CIPAWorld because it involves the Javier case that TCPAWorld has covered multiple times.
Nuance Communications is an artificial intelligence SaaS product that “allows businesses to authenticate their customers’ identities with their voice.” Businesses use this product in their call centers to verify the identities of the callers. Essentially, what Nuance does is it records customers and creates “a voice print for each consumer derived from a recording and examination of the consumer’s voice, enrolling those voice prints into a database, and then comparing the voice characteristics of later callers against its saved voice prints.”
Sounds like an interesting product, if not a little creepy.
But, if a business is going to use this product, they probably want to get the consent of their customers to do so.
In Turner v. Nuance Communications, Inc. 2024 WL 2750017 (N.D. Ca. May 28, 2024), the Court said that Nuance did not prove they had enough evidence of the Plaintiff’s consent to dismiss the CIPA claims. The Court does an excellent job in the opinion of explaining CIPA cases and discussing the Javier reasoning around SaaS provider’s capability to use the record of the interaction for a purpose independent of the client.
Plaintiff must show in the CIPA claims that Nuance did not have consent to record or analyze their voice to make a voice print or to wiretap their conversations with their bank (Chase). Nuance submitted eight exhibits and requested the court take judicial notice of the exhibits to demonstrate the consent of Plaintiff.
However, the Court refused to take judicial notice because while some of the documentation was present on the bank’s publicly available website, Nuance could not show that the documentation is the same version as the one Plaintiff allegedly read. Furthermore, even if the court could take notice, there are still factual disputes over the sufficiency of the notice documents.
As to Javier, Nuance argues they are merely a tool, whereas Plaintiff argues that Nuance is more than a tool because “it actively offers and conducts an eavesdropping service as an independent third party.” In Javier, according to this opinion, “Judge Breyer found only two ways that a SaaS provider like Nuance may fall under the party exception: ‘(1) If [Nuance does not have the capability to use its record of the interaction for any other purpose (just as a tape recorder has no independent capability to divulge the recording for any other purpose but that of its owner); or (2) the ubiquity of services like [Nuance] effectively renders it party to the ‘firsthand dissemination’ of [Plaintiffs’] information to [Chase].”
Based on the allegations plead by Plaintiff, the Court could “reasonably infer” that Nuance had the capability to use the data for purposes other than just reporting back to Chase.
Nuance’s motion to dismiss was denied.
A couple of takeaways here:
- Consent and proof of consent is of paramount importance in CIPA cases.
- AI, in my opinion, is going to inherently be found to not be an independent third party because under Javier most AI tools want to take the data and learn from it to improve the product. Which is why consent to use of the product is so important.
