The Ninth Circuit Court of Appeals recently rejected retroactive consent as a means of complying with Section 631(a) of the California Invasion of Privacy Act (“CIPA”), commonly referred to as the “wiretapping” section of CIPA. The Court’s opinion in Javier v. Assurance IQ, LLC casts doubt on compliance policies that rely on retroactive consent from users for certain forms of online tracking but raises as many questions as it does answers. Until those uncertainties are resolved, we recommend that businesses operating in California obtain prior consent before recording users’ interactions with their websites.
The Ninth Circuit reversed that decision on appeal. Based on its review of related statutes and relevant precedent, it concluded that Section 631(a) requires the prior consent of all parties, and that retroactive consent does not ratify violations of that requirement. The case was remanded to the lower court for further proceedings.
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