The Status of Privacy Litigation
Privacy litigation is a new way for attorneys to make money. Based on the number and types of cases, they think they can make a lot of it. Some examples:
- Chat wiretapping lawsuits. The premise here is that companies use a third party service to record chat sessions on websites. Since the customer using the chat does not know there is a third party privy to their conversations, it may break the wiretap laws. Some cases are getting dismissed but others are given a chance to amend their claims and try again. The attorney who gets rich on this one is the attorney you are paying to defend your company. Some of the amended claims are working, at least for now.
- Session replay lawsuits. Similar to #1 but slightly different. This is where companies record your mouse clicks, scrolling, page turns, etc.
- Video Privacy Protection Act lawsuits. VPPA was passed decades ago when people published the porn videos that Congress people rented. Creative lawyers are using that to claim that if you watch a video and the web site tracks what you watch, that violates the VPPA. 20 new lawsuits were filed just last month.
- Voice recording lawsuits. This type of lawsuit says that companies that record your voice to verify their identity are breaking the law. The lawyers say this violates invasion of privacy laws. This is too new to tell yet.
- Soon we will see new lawsuits. Washington just passed a health data privacy law. It allows for anyone to file a lawsuit. This will be fertile ground for lawyers.
- Cookies and more cookies. Cookie banners, at least in some cases, are merely eye candy and don’t actually do anything. Send in the lawyers! This could use wiretapping laws again.
- In terms of litigation trends, there are over a hundred chat wiretapping lawsuits pending. Session replay lawsuits also claim wiretapping laws as the basis because they don’t know they are being recorded. VPPA lawsuits seem a bit of a stretch to me, but maybe.
Clearly lawyers are checking out the landscape here. Some types of claims will just go away if no one wins the cases. Others may be elevated if the plaintiffs win.
For business owners, this means that you need to get legal advice and pay attention. Remember, in the U.S. we have an adversarial legal system. That means it is not about righting a wrong, it is about winning (sorry about being cynical).
If we can assist you, please contact us.
Credit: Husch Blackwell Law
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