As technology advances, so, too, does privacy litigation.  When the California legislature enacted the California Invasion of Privacy Act (“CIPA”) in 1967, it was trying to protect against the interception of wireless telephone conversations.  No one thought, nor could they, that, fifty years later, CIPA would be applied to the internet, let alone to chatbots, session-replay tools, or event tracking. 

Nearly all privacy claims follow the same pattern:

1. Technological Adoption: the technology at issue in the litigation generally must reach a certain adoption threshold before claims arising out of it are lucrative enough to justify a lawsuit.

2. Public Awareness: the public and, more importantly, the plaintiffs’ bar must develop a general understanding of how the technology works and the purpose or purposes underlying it. 

3. Litigation Success: at least a few complaints must survive dismissal before the plaintiffs’ bar is willing to throw resources behind the theory.

This is what happened with chatbot, session replay, and event-tracking claims.  The tools became ubiquitous, they became widely known, and plaintiffs started to have some success.  The snowball rolls downhill. 

Earlier this week, two separate class-action complaints were filed asserting the same types of claims normally seen in privacy litigation: violation of CIPA, violation of the Electronic Communications Privacy Act (“ECPA”), violation of the Video Privacy Protection Act (“VPPA”), violation of the California Comprehensive Computer Data Access and Fraud Act (“CDAFA”), violation of California’s Unfair Competition Law (“UCL”), invasion of privacy, etc. 

The complaints also asserted the same types of injury: information about a user was collected without his or her consent or knowledge, was monetized at the expense of the user, and invaded the user’s privacy. 

The complaints differed, however, in the technology that allegedly caused this injury.  In both, the plaintiffs claimed that the defendants captured information about them using technology surreptitiously installed, or at least not adequately disclosed, in their connected television (“CTV”) devices. 

Whether and to what extent these claims have any merit is yet to be seen.  But is clear that, with CTVs, we have now passed the “technological adoption” and “public awareness” stages and are squarely within the “litigation success” phase.  And if the claims survive the motion to dismiss phase, we should expect to see more and more like them. 

The best defense to any class action is to avoid it entirely.  Staying abreast of trends like this provides companies with the best ability to do so.  Hoping not to be named in one of these lawsuits is not a strategy; it is a recipe for disaster.  There are steps every company should be taking right now to mitigation, if not entirely avoid, being the next defendant.