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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

New Holding That CIPA Not Preempted By Federal Wiretap Act

Posted in Litigation, United States

Adding to a growing body of decisions considering federal preemption of the California Invasion of Privacy Act (“CIPA”), Judge Chen of the Northern District of California held yesterday that there is no complete preemption, either express or implied, by the federal Wiretap Act.  As a result, Judge Chen granted plaintiff’s motion to remand one class action concerning Carrier IQ software (Shively), which contains no federal claims, back to California state court where it was initially filed, rather than allowing it to proceed as part of multi-district litigation in federal court.  This decision mirrors a recent holding by Judge Feess in the Central District of California, which we previously wrote about here.

Judge Chen noted that he found the Leong decision by Judge Feess and the 2011 decision of Judge Henderson of the Northern District of California in Valentine v. NebuAd, Inc. (each finding no preemption of CIPA) to be more persuasive than Bunnell v. Motion Picture Association of America, a Central District of California case from 2007 and In re Google Inc. Street View Electronic Communications Litigation, a Northern District of California case from 2011 (finding complete preemption).  This was in part, Judge Chen stated, because the latter cases did not address the legislative history referenced by the courts in the former cases and because complete preemption is a rarity that “arises only in ‘extraordinary’ situations.” 

The preemption question arose in these cases because while the federal Wiretap Act permits an interception with the consent of only one party to the communication, California law is said to require the consent of all parties to a communication for an interception.