Google Motion Says Its Recording Software Can't Be Held Liable in CIPA Case

Plaintiff Misael Ambriz’s privacy complaint against Google should be dismissed under Rule 12(b)(6), said Google's motion Tuesday (docket 3:23-cv-05437) in U.S. District Court for Northern California in San Francisco. Google can’t be held liable under the California Invasion of Privacy Act (CIPA) “for merely providing a software program -- the modern equivalent of a tape recorder” -- that Verizon uses for customer service calls, said Google's memorandum of points and authorities in support of the motion.

Ambriz’s October class action alleges neither Google nor Verizon obtained prior consent of any person who interacted with Verizon’s customer service agents before recording, reading and learning the contents of conversations between Californians and Verizon’s customer service representatives.

Ambriz called Verizon’s contact center several times and expected the conversations to be between just him and Verizon; he was unaware that Google’s Contact Center AI (CCAI) software product, a “third party,” was “listening in on his conversation,” the complaint said.

The complaint’s wiretapping and eavesdropping claims under Section 631(a) of CIPA “are untenable,” Google said. California makes it “abundantly clear" that supplying such technology “does not make the supplier itself a party to the conversation,” said the memorandum.

Ambriz allegedly called Verizon’s customer service center, interacted first with a computerized “virtual agent” and then spoke to a live Verizon customer service agent, the memorandum noted. The plaintiff “never claims, nor could he, that he was unaware his call was being monitored and recorded,” it said. Instead, Ambriz alleges Verizon didn’t inform him that the monitoring and recording was done through Google’s Cloud Contact Center, and that Google wiretapped and eavesdropped on conversations between Verizon and customers on its customer service line, it said.

The plaintiff can’t state a claim because he doesn’t plausibly allege that Google was a third party to his communication with Verizon, said the memorandum. The law “is clear” that parties to communication can use tools, like Google’s software, to record or analyze their own conversations with others, it said. The use of such tools doesn’t make Google an unannounced third party to the call so “no violation occurred here,” it said.

Ambriz also doesn’t plausibly allege the involvement of a “person” or eavesdropping on a “telegraph or telephone wire," said the memorandum. CCAI is not a “person” under the statute and the plaintiff doesn’t claim that Google or a Google employee eavesdropped on his calls, nor does he plead that he called Verizon using a telephone wire vs. an “internet-based smartphone,” it said.

The court should also dismiss the complaint because Ambriz consented to having his calls monitored and recorded, the memorandum said. He doesn’t allege Verizon failed to inform him his calls were being monitored and recorded or that he was unaware of this when he chose to continue the calls, it said. He attempts to “artfully plead around his consent by claiming he was not informed that Google’s software did the recording,” it said.

The complaint should also be dismissed because CIPA “specifically exempts” telephone companies and their agents, such as Google, from the statute if the “contemporaneous call recording is for the purpose of providing the telephone company’s services,” and Verizon’s provision of direct customer service “falls within this exception,” it said.