BarbriSFCourseDetails

Course Details

This CLE webinar will offer guidance to class action lawyers about the new wave of class action litigation and mass arbitration alleging that companies have violated state or federal wiretapping or privacy statutes by using third-party AI-driven algorithms to collect customer data for website analytic purposes. The program will review the technology, discuss plaintiffs' most current theories (and challenges), and suggest best practices for avoiding such claims in the first place.

Faculty

Description

Hundreds of class actions and more recently, mass arbitrations, have alleged that website analytical technologies, such as session replay, tracking pixels, and chatbots, illegally intercept customer communications in violation of federal and state wiretapping laws and state privacy laws, including the California Invasion of Privacy Act. In the past, these claims generally have been dismissed on grounds that mouse movements, keystrokes, and similar data input by a user do not convey any type of substantive communication, that the user consented to the disclosure, or that third-party vendors were not intercepting communications in transit or using the information for their own purposes.

Courts from California to Massachusetts, however, are reconsidering these defenses in light of newer forms of website technologies, especially with the use of AI when the data is sent back to the software vendor to improve the AI software product. One California court has allowed a claim to go forward for aiding and abetting the wiretapping (by the third-party vendor) and another because the plaintiffs simply alleged that the vendor had the capability for such use.

There are several meritorious and effective defenses to these claims, but many businesses may not know that they are at risk of wiretap lawsuits, may assume incorrectly that they are already protected, do not know what these defenses are, or do not know what action should be taken.

Listen as this distinguished panel discusses the latest developments in class actions alleging undisclosed tracking software.

Outline

  1. Overview of website analytical technologies
  2. Purposes of federal and state wiretapping, privacy statutes
  3. How plaintiffs allege violations occur
  4. Defenses
  5. Recent cases
  6. Mitigation strategies

Benefits

The panel will review these and other relevant issues:

  • Is prior or contemporaneous consent required to defeat claims based on AI-infused software?
  • What is needed to establish standing?
  • Are third parties actual "parties" to a communication?
  • What might be special concerns in the healthcare setting?