Javier v. Assurance IQ, LLC et al.: Ninth Circuit issues ruling in session-replay case

On May 31, 2022, the Ninth Circuit issued its ruling in Javier v. Assurance IQ, LLC et al.  – a putative “session-replay” class action under the California Invasion of Privacy Act (Cal. Penal Code § 630, et seq.) (CIPA).  For those who have not kept up with the session-replay litigation, over the past several years, plaintiffs have begun filing putative class actions against website operators and third-party analytics companies, alleging that use of “session-replay” software, which tracks website users’ interactions with a website, constitutes an illegal wiretap under various states’ two-party consent wiretapping statutes.

In Javier, the Ninth Circuit addressed whether consent under CIPA can be retroactive and occur after a website user has begun interacting with a website.  The plaintiff in Javier allegedly visited nationalfamily.com, an insurance-quoting website that utilizes third-party software to record a video of users’ interactions with the website. After filling out an insurance-quote questionnaire on the website, the plaintiff “viewed a screen that stated that clicking the ‘View My Quote’ button would constitute agreement to Assurance’s Privacy Policy.”  The plaintiff clicked the “View My Quote” button, thereby agreeing to the Privacy Policy, but later filed a putative class action, claiming the website owner and third-party software company violated Section 631(a) of CIPA by recording his interactions with the website.

The district court dismissed the plaintiff’s claims, finding the plaintiff had retroactively consented to the collection of the information through his agreement with the Privacy Policy.  The Ninth Circuit, however, disagreed. 

Although it acknowledged that the California Supreme Court has not addressed whether retroactive consent is valid under Section 631(a), the Ninth Circuit, interpreting other California Supreme Court opinions, concluded Section 631(a) “require[s] the prior consent of all parties to a communication.”  Because the plaintiff alleged the defendants did not request consent “prior to his filling out the insurance questionnaire online,” the Ninth Circuit determined his communications were recorded without his valid consent. 

Despite this holding, the Ninth Circuit emphasized that it did “not reach Defendants’ other arguments,” which leaves open a host of other questions about the viability of session-replay cases under CIPA, as well as other state wiretapping statutes.   

Learn more about the implications of this case by contacting any of the authors.