9th Circuit Sets Trend On Valid Consent For Website Visit Recordings

In May 2022, the Ninth Circuit Court of Appeals held that prior express consent must be obtained in order to legally record a user's website visit or risk violating Section 631(a) of the California Invasion of Privacy Act (commonly known as the State's "wiretapping" law).

In Javier v. Assurance IQ, LLC, Plaintiff visited Assurance's website for the purpose of requesting an insurance quote. The Court noted that "Unbeknownst to Javier, Trusted Form [the company hired by Assurance to record user's interactions with the website] captured in real time every second of his interaction with Nationalfamily.com and created a" video recording of his website visit. In light of the absence of a decision by the California Supreme Court on what constitutes valid consent under Section 631, the Ninth Circuit reversed the decision of the lower court and held that Section 631(a) requires prior consent of all parties to a recorded communication, not retroactive consent.