Privacy Lawyer Celebrates Federal Judge Calling CIPA 'a Total Mess'
After a federal judge said the California Invasion of Privacy Act (CIPA) was “a total mess” in a ruling Friday, a privacy lawyer touted Judge Vince Chhabria for “call[ing] it like it is.”
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He “summed up in one opinion what I (and others) have been arguing for years,” said Womble Bond lawyer Matthew Pearson in a LinkedIn post Tuesday. “Essentially, through thousands of complaints (and even more demand letters), plaintiffs have tried to jam their square claims into the round hole that is CIPA. And, thus far, courts have generally permitted them to do so.”
The case where Chhabria leveled the assessment of CIPA is Doe v. Eating Recovery Center (docket 3:23-cv-05561), where Jane Doe claimed the health care provider embedded a Meta tracking pixel on its website without her knowledge or consent. This led to her personal and medical information being shared with the social media company.
Yet in his ruling, Judge Chhabria said it was “undisputed" that Meta never read or learned the contents of "Doe’s communications with ERC while those communications were in transit.”
“As difficult as it is to apply CIPA to the physical world, it’s virtually impossible to apply it to the online world,” the judge added.
Accordingly, the judge was hopeful “the Legislature will go back to the drawing board on CIPA."
Moreover, Chhabria urged lawmakers to "erase the board entirely and start writing something new.” But, until then, "courts should not contort themselves to fit the type of conduct alleged in this case into the language of a 1967 criminal statute about wiretapping.”
Pearson agreed with Chhabria that it's "'borderline impossible to determine whether a defendant’s online conduct fits within the language of the statute.'"
The lawyer added that Chhabria calling the CIPA a mess wasn't "his most impactful statement,” but that “his unequivocally describing CIPA as ‘ambiguous’ carries far more weight because it triggers the rule of lenity -- a legal rule requiring a court to interpret an ambiguous criminal statute in favor of the defendant.”
Despite the ruling, Pearson said he is unsure whether it will “be the sea change we have waited for,” though he doubted that the 9th U.S. Circuit Court of Appeals would be called to weigh in.
However, “courts will now have to grapple with this ruling when pressed to apply the rule of lenity,” and “the California legislature is on notice that kicking the can down the road (SB690 anyone?) should no longer be an option." SB-690 is a CIPA update bill that the legislature punted on this year (see 2507010057).
“When a California federal judge says that ‘it is imperative for the Legislature to bring CIPA into the modern age and to speak clearly about how the kinds of activities at issue in this case should be treated,’ one would hope that the legislature listens,” Pearson said. “But, if history is any indication, I wouldn't recommend holding your breath.”