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Section 638.51 CLAIMS CONTINUE: LA Times Targeted In Another CIPA Case Involving Trackers!
Thursday, February 15, 2024

A few weeks ago now, Queenie blogged about CNN being targeted in a massive CIPA case involving Section 638.51. Read more here.

Now, LA Times is being targeted under the same provision!

A woman named Taliah Mirmalek recently filed a putative class action against LA Times Communications LLC alleging violations of CIPA.

This is not one of the more common CIPA type of cases that we see, however (i.e., recording or wiretapping.) This case involves a different portion of the statute, Section 638.51(a).

Section 638.51(a) provides that “a person may not install or use a pen register or a trap and trace device without first obtaining a court order pursuant to Section 638.52 or 638.53.” Section 638.51(a).

But what is a pen register and a trap and trace device?

According to section 638.50(b), “Pen register” means 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. Interesting.

“Trap and trace device” means a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, but not the contents of a communication. Section 638.50(c).

Apparently, historically, law enforcement used “pen registers” to record the numbers of outgoing calls from a particular telephone line, and used “trap and trace devices” to record the numbers of incoming calls to that particular telephone line. As technology advanced, however, courts have expanded the application of these surveillance devices.

The allegations.

According to the Plaintiff, she visited Latimes.com multiple times on her desktop browser.

She states that that once a website visitor visits LaTimes.com, three trackers are installed on the website visitors’ browser—TripleLift Tracker, GumGum Tracker and Audiencerate Tracker.

When she visited the website, these trackers were installed on her browser. Plaintiff alleges at no time did she provide her consent for LA Times to install or use the trackers on her browser. Nor did LA Times obtain a court order before installing or using the teachers.

These trackers, Plaintiff alleges, are “pen registers” and are used to collect website visitor’s IP addresses.

Plaintiff alleges the purpose of the installation of the trackers on Plaintiff and the class members’ bowsers are to serve targeted advertisements and conduct website analytics of its visitors.

So how does it work?

Plaintiff alleges LA Times’ server installs the TripleLift Tracker on the user’s browser, the TripleLift Tracker instructs the browser to send TripleLift the user’s IP address, the TripleLift Tracker stores a cookie in the browser cache, and TripleLift will continue to receive the user’s IP address on subsequent Website visits through the cookie.

And the same process happens with GumGum and Audiencerate.

The Complaint is quite fascinating. Read more in detail here.

Pursuant to Cal. Code Civ. Proc. § 382, Plaintiff seeks to represent a class defined as all California residents who accessed LaTimes.com in California and had their IP address collected by the Trackers.

As you folks know, CIPA carries a massive $5,000 in statutory damages per violation!

Because this case is filed as a putative class action, the potential liability here is enormous!

We will of course keep a close eye on this one and provide updates as the case progresses.

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