District Court grants motion to dismiss in CIPA class action

Privacy/Cyber Risk & Data Security Courts Class Action CIPA

On January 25, the U.S. District Court for the Northern District of California granted a motion to dismiss a class action suit, in which plaintiffs alleged that the defendant continued to monitor mobile users’ browsing history even after being asked to cease and desist. In their third amended complaint, the plaintiffs alleged that the defendant violated the California Invasion of Privacy Act (CIPA) because, among other things, although “developers and consumers consented to [the defendant] uploading data to its servers for the developers’ use, … [the defendant] also retained a copy for its own use.” The defendant argued that the plaintiffs’ “conclusory statement that communications are intercepted is not enough to make out a § 631 claim [of the CIPA].”

The CIPA claims against the defendant were previously dismissed because they “failed to aver simultaneous interception.” The plaintiffs also attempted to revitalize their breach of contract claim by arguing it was a unilateral contract, but the district court noted that “[u]nder this theory, a contract was created by [the defendant’s] provision of a button to adjust privacy settings, text describing what the button supposedly did, and [the plaintiffs’] clicking of that button.” The district court further noted that it is not enough to create a unilateral contract, and that “[the defendant] was not asking [the plaintiffs’] to click the button, let alone bargain for such performance, and [the plaintiffs’] could not have reasonably expected they were entering into a contract simply by adjusting their account settings.”