Companies have websites to reach customers, share products and services, and communicate brands. But websites can also create legal risks. Recently, litigation has surged against website owners for violating the California Invasion of Privacy Act (CIPA). This 1960s phone-wiretapping law is now used against websites that collect and share visitor data with third-party vendors. The legal theory, in part, is that when a user visits a website and their information is processed, the third-party vendor listens in on this communication without notice or consent from the website user.

But what is a communication anyway?

There’s little question that a phone conversation is a communication under CIPA—the law was originally passed in 1967 to protect phone conversations from elicit wiretaps. And while no California state appellate court has published on this question, several courts in California have held that typing information into a website chat box is a communication.

Efforts have been made to stretch the definition of a ‘communication’ under CIPA even further. Are website clicks, time spent on a webpage, or information gathered from the route a user takes to complete a purchase communications? Litigation in California lower courts has yielded mixed results. In October 2023, the Massachusetts Supreme Judicial Court ruled that web browsing is not a communication under Massachusetts’ wiretap law. But we still do not know if California appellate courts will follow.

You can take practical and straightforward steps to significantly limit your risk of liability under CIPA. And, if done right, this low-cost preventative work does not have to impact how your business or website operates. Reach out if you want to discuss.

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Photo of Jason Stiehl Jason Stiehl

Balance and comprehension are Jason Stiehl’s strengths. Splitting his practice between class action defense and trade secret protection, Jason immerses himself in the business of his clients. With a depth of understanding and appreciation for the risks and growth strategies in his clients’…

Balance and comprehension are Jason Stiehl’s strengths. Splitting his practice between class action defense and trade secret protection, Jason immerses himself in the business of his clients. With a depth of understanding and appreciation for the risks and growth strategies in his clients’ markets, he defends the assets and brands most valuable to his clients before trouble strikes.

Jason is a partner in Crowell & Moring’s Chicago office, where he is a member of the firm’s Litigation and Technology and Brand Protection groups. Jason is an experienced trial lawyer with a nationwide practice in federal and state courts focusing on complex litigation, consumer class actions, and advertising disputes. He serves clients in the retail, food and beverage, pharmaceutical and medical equipment, advertising, and technology sectors defending allegations related to consumer fraud, false labeling and deceptive practices, and Lanham Act violations. As a leading consumer class action defense lawyer, Jason also defends clients in matters involving the regulatory alphabet soup. His experience includes defense and counseling regarding the Illinois Biometric Information Privacy Act and the Telephone Consumer Protection Act and navigating the myriad varying state consumer protection statutes, including California’s Legal Remedies Act and the California Consumer Privacy Act.

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.).