Unraveling the Confusing Bits of American Data Privacy Litigation
Being a savvy digital native in today's day and age doesn't merely entail knowing how to operate your device. You should also be aware of your right to privacy and the fine points of data privacy litigation. As the editor of a prestigious online legal journal, I have seen firsthand the bewildering shifts and the more subtle parts of this subject. As such, I share crucial insights drawn from the January 2025 privacy litigation decisions in this article on the tangled issues of the digital privacy landscape.
Focusing on the Tricky Parts: Five Key Insights from January 2025
When dealing with the nitty-gritty of just one month's worth of court rulings, there are five key insights that I believe chip away at the intimidating nature of data privacy legislation.
Consent and its Role in Web Privacy
It's important to poke around the question of whether a user consents to ad-targeting technologies via a website’s privacy policy, as it has broad implications on allegations of wiretapping. Courts seem divided on the issue. However, one thing is clear: defendants need to demonstrate enough proof to establish constructive consent.
The Party Exception in Wiretapping Claims
In a few lawsuits, the “party exception” to wiretapping claims was one of the main points of contention. In some cases, courts have found third-party vendors entitled to the exception due to statements by these vendors. Nevertheless, the application of this principle seems to be inconsistent across the board.
Navigating the "Tap and Trace" Space
"Tapping and tracing" actions seemingly survive motions to dismiss in the California courts. They continue to support claims under Section 638.51 of California's Penal Code. But, as one legal challenge highlights, the use of such technologies extends beyond IP address capturing. For example, some argue that the tracing of things like geolocation data and email addresses constitutes an invasion of privacy under these laws.
The Ongoing VPPA Controversy
Depending on the specific context, courts either expand or limit the applicability of the VPPA (Video Privacy Protection Act). The Salazar v. Nat'l Basketball Assoc. case helped broaden the Act’s scope. Conversely, a court ruled that selling tickets for an in-person showing doesn't violate VPPA - a decision that leaves the scope of the law up for debate.
Spy Pixel Cases: A Non-Starter?
Lawsuits alleging violations of Arizona’s “spy pixel” law (Arizona State § 44-1376) were dismissed, as the plaintiff couldn't demonstrate 'concrete harm', thereby lacking standing. A higher evidentiary burden post the TransUnion Supreme Court decision seems to make it harder for these cases to move forward.
Diving Deeper into U.S. Data Privacy Litigation Trends
Data privacy legislation is far from stagnant, with varying theories and factual circumstances marking the landscape. Let's take a closer look at some of them.
Chat Wiretapping Lawsuits
Chat wiretapping lawsuits have grown in popularity since mid-summer 2022, with over 100 being filed in relation to chat services on websites. The essence of the claim is an alleged violation of wiretapping laws in states requiring all parties' consent to record the communication.
Use of Voice Recognition
Another nerve-racking element seen in privacy violation lawsuits is the use of voice recognition software, typically for security measures. Unfortunately, these systems can and have been exploited, leading to more than a few headaches for parties involved in litigation.
IP Tracking and Pen Registry Laws
Finally, tracking users' IP addresses has, in some instances, been seen as potentially running afoul of pen registry laws like CIPA, § 638.51. This pertains to the recording of dialing, routing, and signal information transmitted by any instrument from which a wire or electronic communication is sent.
In conclusion, digital privacy in the U.S. is far from being a walk in the park. It's loaded with tension, full of problems, and riddled with challenging, super important, and ever-evolving litigation laws which carry significant implications for the everyday consumer and business owner alike.
Originally Post From https://www.jdsupra.com/legalnews/u-s-privacy-litigation-update-january-5218524/
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