Wiretap Plaintiff Lacks ‘Viable Statutory Claim’ Under CIPA, Says Tonal

Defendant Tonal Systems will move at an Oct. 11 hearing to dismiss plaintiff Julie Jones’ wiretapping class action for failure to state a claim upon which relief can be granted, said Tonal’s notice Tuesday (docket 3:23-cv-01267) in U.S. District Court for Southern California in San Diego.

Jones alleges Tonal, a maker of home gym equipment, violated the California Invasion of Privacy Act (CIPA) and the state’s Unfair Competition Law (UCL) when it used software from a third-party vendor, Drift, to secretly eavesdrop on the private conversations of users of the chat features on Tonal’s website (see 2307110047). She also seeks to hold Tonal liable for its practice of allowing third parties “to harvest data for financial gain.”

Jones’ case against Tonal is one of at least six “cookie-cutter complaints” she has filed alleging a retail company’s use of a ubiquitous, voluntary chat service on its website constitutes aiding and abetting wiretapping, said Tonal’s memorandum of points and authorities in support of its motion to dismiss. Jones doesn’t, and can’t, “substantiate her claims with factual allegations” that suggest illegal wiretapping or that an invasion of her privacy occurred, it said.

Jones lacks a “viable statutory claim for wiretapping” under the CIPA, said Tonal’s memorandum. As numerous courts said, her allegations show only that Drift “is a vendor that provides a tool that Tonal uses to communicate with its website visitors,” it said. Jones alleges Drift records and transcribes the chat communications, but she doesn’t allege Drift uses it for its own purposes, it said. Nor does she “adequately allege” Drift “intercepts the chats while in transit,” it said. Any purported access by Drift to the written communications at issue “allegedly occurs after they reach their destination server,” while the communications are in storage, it said.

Alleged access to communications in storage can’t constitute an “interception” under the CIPA’s Section 631, said the memorandum. Jones also doesn’t allege Drift accessed any contents of her communications, as is required to state a Section 631 claim, it said. She also doesn’t, and can’t, allege Drift intercepted or recorded a communication between two phones, it said. That requires dismissal of her CIPA Section 632.7 claim, it said.

Jones’ remaining claims are “equally defective,” and no amendment can cure those defects, said Tonal’s memorandum. She doesn’t provide any “factual allegations” about her own use of the chat feature, it said. She fails to allege she entered sensitive or confidential information, it said. Those are the only types of information “that might support an invasion of privacy claim under California law,” it said. Since she doesn’t and can’t allege economic harm caused by Tonal’s use of Drift’s chat service, she doesn’t have statutory standing under the UCL, and that claim must also be dismissed, it said.