In Miguel Licea v. Old Navy, LLC, out of the U.S.D.C. Central District of California, Plaintiff claims that Old Navy illegally monitored visitors’ interactions with its online chat function and alleged violations of CIPA Section 631(a) and Section 632.7.

Judge Sunshine Skye denied the complete dismissal of the class action lawsuit, finding that Plaintiff’s allegation of lack of consent and use of his smartphone were sufficient allegations to move forward on his second cause of action under Section 632.7. But the California judge dismissed Plaintiff’s 631(a) claim noting that CIPA exempts from liability, any entity who is a “party” to the communication – thus Old Navy could not be directly liable for wiretapping as Old Navy was party to the customer chats at issue.

In declining to dismiss Plaintiff’s Section 632.7 claim,  Judge Skyes rejected Old Navy’s argument that the complaint necessarily fails because Plaintiff cannot allege that both parties were using a qualifying telephone device to conduct the customer chats.

Section 632.7 prohibits intercepting or recording “a communication transmitted between two cellular radio phones.” Cal. Penal Code § 632.7 (emphasis added).

However, Judge Skye recognized that Federal courts characterize Section 632.7 as prohibiting  “the intentional recording of any communication without the consent of all parties where one of the parties is using a cellular or cordless telephone.” 

Here, the Plaintiff’s alleged communication with Old Navy occurred on Old Navy’s chat feature on its website and Plaintiff accessed Old Navy’s website via his smartphone. Judge Skyes found that internet-based communications can be included within the scope of Section 632.7 where the plaintiff  had a reasonable expectation of privacy to the communications. And because Plaintiff alleged that users of Old Navy’s website “share highly sensitive personal data” via its chat feature, Plaintiff had sufficiently alleged that website users had a reasonable expectation of privacy and therefore the communications fall within the scope of Section 632.7.

Additionally, Judge Skye rejected Old Navy’s argument that Plaintiff consented to any alleged recording as Plaintiff plead that he and class members did not consent to the conversations.

In dismissing Plaintiff’s cause of action for  Section 631(a), Judge Skye found Plaintiff’s allegation that Old Navy allows a third party to “easvefdrop on communications….to harvest data for financial gain” was too vague and conclusory to show derivative liability. Relying on, Williams v. What If Holdings, and Graham v. Noom, Judge Skyes found Plaintiff must provide facts suggesting that the third party recording Old Navy’s customers’ information for some use beyond simply supplying the information back to Old Navy.

Additionally, the court found Plaintiff’s allegation that Old Navy violated CIPA’s wiretap provision by “aiding and abetting…at least one third party [Salesforce] to eavesdrop upon conversations was also vague and conclusory as these allegations cannot support the supposed involvement of Salesforce. The court allowed Plaintiff leave to amend its complaint to address the Section 631(a) deficiencies.

Lastly, note, Judge Skye is the same judge who authored an earlier CIPA decision – decided another motion to dismiss to Plaintiff’s Section 631(a) and Section 632.7 claims in the Goodyear case.

As the Czar reported, CIPA website chat feature wiretapping lawsuits continue to rise – and litigants continue to face split decisions between California Judges. Companies using chat box features need to start implementing policies and disclosures to obtain consent and continue to monitor these decisions — probably by reading CIPAWorld.com. Resolution of CIPA cases may turn on which Judge is assigned to your case – we’re here for you and we’ll continue to keep an eye out here at CIPAWorld as the decisions continue to pour in.