Tag: Wiretapping

SUPERBOWL CIPA SUNDAY: Does Samsung’s Website Chat Feature Violate CIPA?

Happy CIPA and Super Bowl Sunday TCPA World!

So, Samsung is under the spotlight with a new CIPA case brought by a self-proclaimed “tester.” You know like Rosa Parks?? Back to that in a bit.

The California Invasion of Privacy Act (“CIPA”) prohibits both wiretapping and eavesdropping of electronic communications without the consent of all parties to the communication. The Plaintiff’s bar is zoning in to CIPA with the Javier ruling.

If you recall, Javier found that “[T]hough written in terms of wiretapping, Section 631(a) applies to Internet communications. It makes liable anyone who ‘reads, or attempts to read, or to learn the contents’ of a communication ‘without the consent of all parties to the communication.’ Javier v. Assurance IQ, LLC, 2022 WL 1744107, at *1 (9th Cir. 2022).

Here, Plaintiff Garcia claims that Defendant both wiretaps the conversations of all website visitors and allows a third party to eavesdrop on the conversations in real time during transmission. Garcia v. Samsung Electronics America, Inc.

To enable the wiretapping, Plaintiff claims that Defendant has covertly embedded software code that functions as a device and contrivance into its website that automatically intercepts, records and creates transcripts of all conversations using the website chat feature.

To enable the eavesdropping, Defendant allows at least one independent third-party vendor to secretly intercept (during transmission and in real time), eavesdrop upon, and store transcripts of Defendant’s chat communications with unsuspecting website visitors – even when such conversations are private and deeply personal.

But Plaintiff currently proceeds in an individual action but if Samsung does not take appropriate steps to fully remedy the harm caused by its wrongful conduct, then Garcia will file an amended Complaint on behalf of a class of similarly aggrieved consumers.

Now back to Civil Rights.

According to this Complaint, Garcia is like Rosa Parks, you know, the civil rights activist. Why?

Well, because “Civil rights icon Rosa Parks was acting as a “tester” when she initiated the Montgomery Bus Boycott in 1955, as she voluntarily subjected herself to an illegal practice to obtain standing to challenge the practice in Court.”

Because Wiretapping and civil rights are similar right??

Disgusted.

The Plaintiff’s bar has no problem muddying the waters to appeal to the courts.

Do better.

CIPA is some dangerous stuff. Websites use chat features to engage with consumers all the time. It seems like it is easier to communicate via chat or text than to sit on a call waiting for an agent – assuming you get an agent. But maybe not?

Stay safe out there TCPA World!

Til next time Countess!! back to the game, GO EAGLES!!! #Phillyproud

Article By Jenniffer Cabrera of Troutman Firm

For more communications, media, and internet legal news, click here to visit the National Law Review.

© 2023 Troutman Firm

Second Circuit Dismisses Suit Over FBI’s Wiretapping of Marital Conversations in Securities Fraud Investigation

Federal Bureau of Investigation (FBI) wiretapping played an important role in the wide-ranging insider trading investigation and subsequent trials of Galleon Group LLC principals and traders. During his criminal prosecution, former Galleon trader, Craig Drimal, unsuccessfully moved to suppress evidence obtained via an authorized wiretap of his cell phone because of a failure to minimize interception of calls with his wife. His wife, Arlene Villamia Drimal, is now pursuing civil claims against FBI agents for wiretapping her personal telephone conversations with her husband, but her claims have thus far been unsuccessful. On May, 15, the US Court of Appeals for the Second Circuit dismissed Ms. Drimal’s complaint without prejudice to repleading, finding that her conclusory pleading failed to state a claim under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which requires the government to “minimize the interception of communications not otherwise subject to interception.” The Second Circuit also found fault with the lower court’s assessment of the agents’ qualified immunity defense.

In connection with a federal criminal investigation, the US District Court for the Southern District of New York authorized a wiretap of Mr. Drimal’s cell phone, but stressed that monitoring must “immediately terminate when it is determined that the conversation is unrelated [to criminal matters].” FBI agents also were instructed to “discontinue monitoring if you discover that you are intercepting a personal communication solely between husband and wife.” Despite these instructions, agents allegedly monitored approximately 180 private marital calls between the Drimals that were unrelated to the investigation. Although the district court denied Mr. Drimal’s suppression motion in his criminal matter, it identified 18 calls that were “potentially violative” and observed that the agents’ failure to minimize monitoring of private calls was “inexcusable and disturbing.” Ms. Drimal brought her separate civil lawsuit following the conclusion of her husband’s criminal case with his entry of a guilty plea and subsequent sentencing.

At the district court level, the FBI agents unsuccessfully moved to dismiss Ms. Drimal’s complaint for failure to state a claim and on qualified immunity grounds. The Second Circuit reversed that decision, holding that Ms. Drimal’s complaint was insufficient because it merely stated, in a conclusory fashion, that the interception of marital calls violated Title III, without reference to a duty to minimize. The Second Circuit noted that Title III does not prohibit outright the monitoring of privileged calls. With respect to the agents’ qualified immunity defense, the court of appeals held that the district court should have evaluated each agent’s minimization efforts under an “objective reasonableness” standard based on the particular circumstances, rather than as a group. The Second Circuit vacated the lower court decision and directed dismissal of the complaint with leave to replead, stating that amending the complaint would not be futile.

Drimal v. Makol, Nos. 13-2963 and 13-2965 (2d Cir. 2015)

ARTICLE BY Emily Stern & Margaret J. McQuade of Katten Muchin Rosenman LLP

©2015 Katten Muchin Rosenman LLP