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 unauthorized eavesdropping on communications “carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio. . .” Cal. Penal Code § 632.7(a). Recently, plaintiffs have pressed courts to include internet-enabled communications on smartphones within the auspice of § 632.7(a). But is a smartphone communication over the internet a phone under this section of CIPA?

Courts have interpreted the plain text of § 632.7 to cover five types of telephone calls: communications transmitted between “(1) two cellular radio telephones, (2) a cellular radio telephone and a landline telephone, (3) two cordless telephones, (4) a cordless telephone and a landline telephone, and (5) a cordless telephone and a cellular radio telephone.” Missing from this list? Using a smartphone to communicate with others over the internet.

With its web-enabled capabilities and ability to access websites from the device, plaintiffs have argued that their use of a website’s chat feature on their smartphones is akin to a telephonic communication. Many California federal courts have rejected this argument (such as here, here, and here). But at least one court in the Central District of California has taken the minority approach and determined that “[s]martphones are cellular phones with web capabilities and fall within the cellular phone category.”

Ultimately, California appellate courts will need to step in and provide clarity on whether a smartphone remains a phone when used to communicate via the internet. Until then, courts (and litigants) will continue to grapple with the question: under CIPA, what is a phone?