Jason, Jacob, and Jaz have prepared four brief posts on the California Invasion of Privacy Act (CIPA), an old law now applied to new technology. With damages of $5,000 per violation or treble damages, CIPA lawsuits cannot be ignored. If you have a website and want to protect your company from litigation costs, check out these posts and contact us with any questions.

The California Invasion of Privacy Act (CIPA) penalizes those “who willfully and without the consent of all parties to the communication . . . read, or attempt to read, or to learn the contents or meaning of any message, report, or communication.” Cal. Penal Code § 631 (cleaned up).

This rule seems sensible when applied to someone surreptitiously eavesdropping on a phone conversation. The law was passed in the 1960s to protect phone conversations from wiretaps, and if I am secretly listening in on your phone call, then my conduct may fall under the law.

But what happens if there is no third-party eavesdropper? Can I violate the law even when nobody is secretly listening in? Or, in other words, under CIPA, can I eavesdrop on my own conversation?

For many courts in California, the answer is no. These courts have explained that CIPA has a “one-party exception,” which provides that CIPA only applies where a third party to the conversation is actually eavesdropping on the conversation. But this exception has its limits. For example, the exception may not apply to third-parties that have promised in writing to use data it collects for specific, disclosed purposes. And while courts have traditionally drawn a distinction between actually listening into another’s conversation and merely recording another’s conversation, this distinction is harder to justify with some new technological tools.

If you have questions about complying with California, U.S., and global privacy laws, reach out. We can help you identify practical steps to limit your liability risk.

Photo of Jacob Canter Jacob Canter

Jacob Canter is an attorney in the San Francisco office of Crowell & Moring. He is a member of the Litigation and Privacy & Cybersecurity groups. Jacob’s areas of emphasis include technology-related litigation, involving competition, cybersecurity and digital crimes, copyright, trademark, and patent…

Jacob Canter is an attorney in the San Francisco office of Crowell & Moring. He is a member of the Litigation and Privacy & Cybersecurity groups. Jacob’s areas of emphasis include technology-related litigation, involving competition, cybersecurity and digital crimes, copyright, trademark, and patent, as well as general complex commercial matters.

Jacob graduated from the University California, Berkeley School of Law in 2018, where he launched Berkeley’s election law outreach program and pro bono project. He joins the firm after a year of practice at an international law firm in Washington, D.C., and a year clerking in the Southern District of New York for the Hon. Lorna G. Schofield. Jacob was exposed to and provided support in a variety of complex substantive and procedural legal topics during the clerkship, including trade secrets, insurance/reinsurance, contracts, class actions, privacy, intellectual property, and arbitrability.

Photo of Jazmine Buckley Jazmine Buckley

Jazmine (Jaz) Buckley is an associate in Crowell & Moring’s Los Angeles office. In her litigation practice, Jaz assists companies facing complex commercial disputes in both federal and state courts and advises companies on best practices in light of potential high-stakes litigation. In

Jazmine (Jaz) Buckley is an associate in Crowell & Moring’s Los Angeles office. In her litigation practice, Jaz assists companies facing complex commercial disputes in both federal and state courts and advises companies on best practices in light of potential high-stakes litigation. In Jaz’s antitrust practice, she provides counsel on a wide range of issues and agency actions.

Jaz received her J.D. from the University of California, Los Angeles School of Law, where she was a member of UCLA Law Review and National Black Law Journal. Additionally, Jaz served as a judicial law clerk to both Magistrate Judge Gray M. Borden (N.D. Ala.) and District Court Judge Sunshine S. Sykes (C.D. Cal.).