Trusted Form Wiretap Case Confuses TCPA – Privacy Protection
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Javier Case, the Ninth Circuit Court of Appeals ruled that to avoid a wiretap violation, companies should obtain consumer consent before recording begins. The TrustedForm wiretapping case has therefore caused confusion about how to use services such as Trusted Form and how to securely obtain proof of TCPA consent.
What exactly does the TrustedForm wiretap case say?
Javier then learned of the TrustedForm record of his website visit and sued Assurance IQ and ActiveProspect for violations of California wiretapping law. In his complaint, Javier alleges that TrustedForm grants ActiveProspect, a conversational third party, a means to monitor and record his communications with Assurance IQ without his prior consent. In response, ActiveProspect requested that the complaint be dismissed arguing, among other things, that: (1) Javier provided adequate consent to the recording; and (2) ActiveProspect is not a third party covered by wiretapping law. The trial court ultimately dismissed the case, finding that Javier’s retroactive consent to the recording was sufficient. Notably, the trial court did not address the “third party” issue in its decision.
Why is the TrustedForm record important for your business?
It is not difficult to see the vast implications that
Javier decision could have for the telemarketing industry. TrustedForm and similar services that log a consumer’s registration stream provide an invaluable defense against TCPA claims and regulatory demands. Developing in-house software to perform this “consent capture” function would prove costly and difficult for many companies. Proving valid TCPA consent without logging or screenshots of a consumer’s progress through a given consent flow would be much more difficult, or, at least, much less convincing without the logging services provided by companies like ActiveProspect. .
Fortunately, companies can be reassured in three ways.
Thirdthe central argument ignored in
Javier concerns the status of ActiveProspect as a third party (or not) with regard to the law on wiretapping. In another case, a California federal court found that a web hosting company that stored user session data (including recording of mouse clicks and keystrokes) solely for website improvement (as opposed to selling lead information to advertisers) was not a third party under the wiretap law. The outcome of the ruling is that if a company uses session recordings solely to prove TCPA consent, it has a strong argument that the third-party screen recording software company is not a third party, but rather a agent of the website operator.
Hire experienced telemarketing and privacy attorneys.
Today, collecting consent and personal information through a web form is nearly universal. But the different types of consent a company must obtain and in what order can be a confusing knot. Hiring experienced telemarketing and privacy attorneys can save your business the expense and headache of solving these issues on your own. Klein Moynihan Turco’s (“KMT”) attorneys have years of experience in all areas of telemarketing and privacy law. KMT can help companies update their privacy policies and maintain TCPA compliance.
Similar blog posts:
Privacy policies for websites and mobile applications
The Telemarketer’s Guide to TCPA Consent
How CPRA Revises and Updates the CCPA
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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