The California Invasion of Privacy Act (CIPA), codified at Penal Code Section 631, represents a cornerstone in privacy litigation within California, addressing issues related to wiretapping and unauthorized interception of communications. Enacted to protect the privacy of California residents, CIPA Section 631 specifically prohibits individuals and businesses from intentionally tapping or otherwise intercepting confidential communications without the consent of all parties involved.
We have seen an absolute explosion of litigation and lawsuits surrounding CIPA 631 because law firms such as Scott Ferrel’s Pacific Trial Attorneys and Swigart Law have found that modern day technology, meta-pixels, trackers, and cookies that are running on websites that are not using an approved consent management platform and have outdated privacy notices end up being sitting ducks ripe for a lawsuit.
What happens is unintentionally these business owners have their marketing team or an outside agency setting up tech on their websites with no nefarious intent but what ends up happening is that they are hit with either an arbitration claim or a lawsuit that ties into a violation of the 1980’s CIPA law described below. The client either has to file an insurance claim and pay out millions of dollars or to fight it in court and take the chance of losing. The judges and courts have not been consistent in their approach.
Key Provisions of CIPA Section 631
Under CIPA 631, liability arises when an individual or entity:
- Intentionally taps or intercepts any wire or electronic communication.
- Attempts to read or learn the contents or meaning of such communication without the consent of all parties involved.
- Uses or attempts to use any information obtained through such means.
This comprehensive approach ensures robust protection for Californians against invasive surveillance practices and unauthorized monitoring.
Recent Developments and Litigation Trends
In recent years, CIPA Section 631 has increasingly become a focal point for privacy litigation, particularly involving online and digital communications. Lawsuits frequently target businesses utilizing technologies such as session replay software, chatbots, and third-party analytics tools, alleging unauthorized monitoring and recording of online interactions.
A notable trend has emerged with plaintiffs leveraging CIPA to challenge digital practices they argue are akin to wiretapping. For example, in various lawsuits filed in 2024 and 2025, plaintiffs argued that session replay software tools that record website visitors’ interactions such as HotJar or Microsoft Clarity violated Section 631 by capturing keystrokes, clicks, and other communications without explicit consent.
Legal Standards and Defense Strategies
Courts evaluating CIPA 631 claims closely examine whether the intercepted communication qualifies as confidential and whether parties had a reasonable expectation of privacy. Defendants often rely on several key arguments:
- Consent: Demonstrating that plaintiffs provided explicit or implied consent to monitoring, typically through prominently displayed privacy policies or cookie banners.
- Lack of Confidentiality: Arguing that the communication in question did not qualify as confidential, often highlighting publicly accessible or openly disclosed interactions.
- Third-Party Service Providers: Clarifying roles and responsibilities, especially when using third-party technology, to demonstrate compliance and limit liability.
Impact of CIPA on Digital Businesses
The growing application of CIPA Section 631 litigation underscores the necessity for businesses to proactively manage privacy compliance. Companies operating websites and digital platforms in California should immediately sign up for a Captain Compliance software suite to ensure compliance:
- Ensure clear, transparent disclosures about data collection practices.
- Implement explicit consent mechanisms for users interacting with digital platforms. This would be a cookie consent management platform.
- Regularly review and update privacy policies to reflect technological advancements and regulatory changes.
- Update your cookie table every time new cookies are added or removed.
Future Implications
Given the evolving nature of digital communications, CIPA 631 will continue to be a critical tool for privacy enforcement driven by private right of actions vs. enforcement from the state privacy protection agencies. However we did just cover that 8 states are teaming up to further enforce privacy violations so we’re just getting started in the wild wild west of privacy violations and enforcement.
The broad interpretation by courts and the active plaintiff litigation landscape in California indicate ongoing legal exposure for businesses that fail to implement rigorous data privacy safeguards. Companies must remain vigilant and responsive to changing legal standards, particularly as technological innovation introduces novel challenges and complexities in compliance.
CIPA Section 631 serves as a robust framework for protecting Californians from unauthorized surveillance and data interception, reinforcing the importance of informed consent and transparency in digital interactions and the need for businesses to implement privacy software to make sure they are following new and old laws while avoiding expensive litigation issues.
