In Javier v. Assurance IQ, LLC, No. 21-16351, 2022 U.S. App. LEXIS 14951, at *3 (9th Cir. May 31, 2022), the Court of Appeals for the 9th Circuit held that “[t]hough written in terms of wiretapping, Section 631(a) applies to Internet communications.” The facts and procedure below were as follows:
Assurance is an insurance platform that owns and operates Nationalfamily.com. On this website, users can request life insurance quotes from Assurance and its insurance partners. To operate this website, Assurance relies on a product created by ActiveProspect called “TrustedForm.” TrustedForm records user’s interactions with the website and creates a unique certificate for each user certifying that the user agreed to be contacted. In January 2019, Javier visited Nationalfamily.com. To request an insurance quote, he answered a series of questions about his demographic information and medical history. Unbeknownst to Javier, TrustedForm captured in real time every second of his interaction with Nationalfamily.com and created a video recording of that interaction. After filling out the insurance quote questionnaire, Javier viewed a screen that stated that clicking the “View My Quote” button would constitute agreement to Assurance’s Privacy Policy. Javier clicked the “View My Quote” button. Javier filed a class action complaint against Assurance and ActiveProspect (collectively, “Defendants”) in the Northern District of California. He alleged that Defendants violated Section 631(a) of the California Invasion of Privacy Act (“CIPA”). Cal. Penal Code § 631(a). The district court granted Defendants’ motion to dismiss the Second Amended Complaint for failure to state a claim without leave to amend. It held that Javier’s claims were defeated because he had retroactively consented to the conduct at issue by agreeing to Assurance’s privacy policy, and that retroactive consent is valid under Section 631(a).
The Court found that the consent to record must be obtained before the recording.
[W]e conclude that the California Supreme Court would interpret Section 631(a) to require the prior consent of all parties to a communication. Here, Javier has sufficiently alleged that he did not provide express prior consent to ActiveProspect’s wiretapping of his communications with Assurance. According to the complaint, neither Assurance nor ActiveProspect asked for Javier’s consent prior to his filling out the insurance questionnaire online, even though ActiveProspect was recording Javier’s information as he was providing it. Javier has therefore alleged sufficient facts to plausibly state a claim that, under Section 631(a), his communications with Assurance were recorded by ActiveProspect without his valid express prior consent. We reverse the district court’s dismissal of Javier’s Second Amended Complaint and remand for proceedings accordingly. Because they were not reached by the district court, we also do not reach Defendants’ other arguments, including whether Javier impliedly consented to the data collection, whether ActiveProspect is a third party under Section 631(a), and whether the statute of limitations has run.
A copy of the 9th Circuit’s decision can be found at:
https://cdn.ca9.uscourts.gov/datastore/memoranda/2022/05/31/21-16351.pdf