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.

In the Javier case, Assurance used a third-party product called TrustedForm to make video recordings of its users’ interactions with its website. Javier visited Assurance’s website to obtain an insurance quote. However, he was not informed of the video recording until he completed a series of questions that were recorded; at the conclusion of these questions, he was asked to consent to Assurance’s privacy policy and the recording. 

Javier did consent to the privacy policy and recording, but he subsequently filed a complaint alleging that Assurance and TrustedForm violated Section 631(a) by making the recording without his prior consent. The district court dismissed Javier’s claim, holding that his retroactive consent to the recording satisfied the statute’s requirements.

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.

The implication of the Ninth Circuit’s decision in Javier remains uncertain. Due to the district court’s acceptance of retroactive consent, it did not—and the Ninth Circuit could not—consider the validity of other arguments, like implied consent or whether the end-use of the recording is relevant to the analysis. Until those questions are answered, prior express consent to the company’s privacy policy and the recording is best practice to avoid liability under CIPA.

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