We recently reported on the Licea decision, in which a
The Levings complaint alleges that the hotel chain "secretly used 'pen register' software to access Plaintiff's device and install tracking software in violation of
The hotel chain demurred and separately moved to strike Licea's claim for punitive damages. The demurrer pointed out that the complaint failed to specify the "device or process that was used by
The court overruled the demurrer. The court held that the allegation that the hotel chain had "deployed a software device and process" was enough to plead "ultimate facts," and that "a detailed description of the software and the precise mechanism it employs are evidentiary facts which need not be included." The court also rejected the consent theory, observing that "[i]f merely visiting a website constitutes consent to the use of a pen register, then Section 638.51(a) would be a dead letter."
Interestingly, and unlike the judge in the Licea case, the Levings judge did not recognize the flip-side implications: that if merely visiting a website constitutes a violation of the pen register statute, then Section 638.51(a) would "potentially disrupt a large swath of internet commerce without further refinement as the precise basis of liability." Licea v.
On the bright side for the hotel chain, the court granted the motion to strike the punitive damages claim, holding that the plaintiff was limited to the statutory damages set forth in the statute.
The vastly different approaches courts have taken to this new breed of CIPA claim highlights the considerable uncertainty in this area, the need for appellate and legislative clarity, and the importance of educating courts about the technology and the implications of their statutory interpretations.
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