Caveat 9.23.21
Ep 95 | 9.23.21

Internet communications are the latest wiretapping class action trend.


Paul Karlsgodt: Well, so recently, we've seen a lot of cases being filed in particular states, mainly in Florida and California, attempting to apply wiretapping laws to internet technologies called session replay technology.

Dave Bittner: Hello, everyone, and welcome to "Caveat," the CyberWire's privacy, surveillance law and policy podcast. I'm Dave Bittner, and joining me is my co-host, Ben Yelin from the University of Maryland Center for Health and Homeland Security. Hello, Ben. 

Ben Yelin: Hello, Dave. 

Dave Bittner: Hello, Ben. 

Ben Yelin: Hello, Dave. 

Dave Bittner: On this week's show, Ben shares the story of some of the big online players bowing to pressure from Russian authorities. I've got the story of the Supreme Court hearing a case on state secrets and FBI surveillance. And later in the show, my conversation with Paul Karlsgodt from BakerHostetler. We're going to discuss the latest class-action trend - wiretapping claims for the use of standard online tracking software. 

Dave Bittner: While this show covers legal topics and Ben is a lawyer, the views expressed do not constitute legal advice. For official legal advice on any of the topics we cover, please contact your attorney. 

Dave Bittner: All right, Ben. Let's dig into some of our stories this week. Why don't you kick things off for us here? 

Ben Yelin: So my story comes from The New York Times in their technology section by Anton Troianovski and Adam Satariano. Remember a couple of weeks ago when we were talking about Apple and CSAM and how Apple was going to release this limited tool to track online predators to protect against sexually exploitative images of children? 

Dave Bittner: Sure. 

Ben Yelin: Had a whole episode on it. 

Dave Bittner: Yup. 

Ben Yelin: They assured us that this was a limited tool being used for a important purpose. We should still trust Apple with our privacy and our security. They would not bow to the pressures of international regimes that might not be so incredibly kind to civil liberties. 

Dave Bittner: Right. 

Ben Yelin: We now have indication that both Apple and Google are quite prone to pressure from autocratic governments. 

Dave Bittner: (Laughter). 

Ben Yelin: This news comes from Russia. I don't know if you know they're having an election coming up. 

Dave Bittner: Quotes around "election" (laughter)? 

Ben Yelin: Yeah. I am - I have the over-under on Putin's percentage. 

Dave Bittner: Right (laughter). 

Ben Yelin: Somewhere in the high 90s. 

Dave Bittner: It's going to be a real nail-biter; down to the wire there for him, isn't it (laughter)? 

Ben Yelin: Yeah. We'll have to see how those key counties come in. 

Dave Bittner: Right. Right. 

Ben Yelin: But I feel quite bullish on his chances. 

Dave Bittner: Yeah. Yeah. 

Ben Yelin: So they're having an election. It's a three-day election coming up. And the opposition, led by probably the most prominent and well-known pro-democracy Russian politician, Alexei Navalny, has tried to organize some type of opposition in response. Basically, it's an electoral strategy to try and curb the voting results in every single district of Putin's ruling party. 

Dave Bittner: OK. 

Ben Yelin: And he's trying to use an application that he created and other allies of the opposition created which would help to consolidate that protest vote. 

Dave Bittner: So this is a mobile app on your phone so - for example. 

Ben Yelin: On your phone - exactly. 

Dave Bittner: OK. 

Ben Yelin: So you'd log in. It would tell you which opposition candidate to vote for to maximize your showing of opposition in each of the 225 electoral districts. 

Dave Bittner: So kind of a voter information act - or a voter information app, but mostly for the benefit of one side of the election. 

Ben Yelin: Right. 

Dave Bittner: Yeah. 

Ben Yelin: Now, this - you know, this obviously is not intended to win the election. 

Dave Bittner: Right (laughter). 

Ben Yelin: I think Putin's United Russia party has that pretty much in the bag. But this is to express some level of opposition. Because I think it does matter, you know, whether the ruling party in Russia gets 90% versus 98%. 

Ben Yelin: So the app, at the request of the Russian government, was removed from the Apple Store and from Google Play. And this is all part of a campaign by the Kremlin to rein in what's still largely an uncensored internet in Russia. Putin's spokespeople didn't respond to requests for comment, but they did, through a statement, say that the application was illegal. It's, you know, something that's not allowed under the technology laws that exist in Russia. You know, they say they have good purposes for these laws - you know, to crack down on fraud. 

Dave Bittner: Right - because Russia's all about cracking down on misinformation, right (laughter)? 

Ben Yelin: Absolutely. And they care very deeply about election integrity... 

Dave Bittner: Right. Right. 

Ben Yelin: ...Is what I've heard. 

Dave Bittner: Yes. Yes, they do. 

Ben Yelin: So the threat that the Russian government made to Apple and Google was that they would actually arrest Apple and Google employees who are living in Russia, over which they have jurisdiction. 

Dave Bittner: Wow. 

Ben Yelin: So it's a pretty blunt threat. And Apple and Google backed down. So they removed this application from their app store. 

Ben Yelin: What this leads me to believe is that Apple and Google might represent that they're willing to stand up to totalitarian governments, that they're willing to do what they can to foster democratic opposition movements, to support free speech, but when the rubber hits the road and they start to threaten, you know, Google and Apple's own employees in Russia, they're going to cave. And that should make us think twice about their promises. Once they create these tools - like the ability to go into individual devices, search the iCloud for photos to see if any of them match sexually explicit images for children - our natural next question should be, what happens when the Russian government or the Chinese government comes and tries to intimidate you into using that tool for nefarious purposes or to crack down on democratic dissent? 

Dave Bittner: Right. 

Ben Yelin: And this has obviously really rattled the cages of some of the civil liberties proponents - Electronic Frontier Foundation, those types of groups - who are understandably very critical of Apple and Google for taking down this Navalny application, as it's called. So I think this is a warning sign for people who think that you can trust these big tech companies to protect democratic interests, free speech interests, even in the face of threats from totalitarian governments. We now have a very clear example of them backing down under that threat. 

Dave Bittner: Yeah. So let's look at Russia and China separately because I think there are some differences here that we could - that might make a difference. You know, Russia's, you know, percentage of the global economy is much, much smaller than China. 

Ben Yelin: Sure is, yup. 

Dave Bittner: So could it be plausible, for example, for Apple or Google to say, fine, we're not going to do business in your nation? This is not worth it to us. We're pulling out. You know, people - we'll still have this stuff available on the internet, but we're pulling our people out, and so be it. Now, contrast that against China... 

Ben Yelin: Right. 

Dave Bittner: ...Where most of this stuff - well, all of this stuff - is made, right? So you've got your manufacturing base over there... 

Ben Yelin: And a large portion of your customer base. 

Dave Bittner: A huge part of your customer base, yeah. So that's a whole different ballgame, right? 

Ben Yelin: I think there is a discernible difference there. You know, Russia is still a major international player, even though they're not an enormous market share the way China is or even the United States is. 

Dave Bittner: Right. 

Ben Yelin: It's still a really big country. 

Dave Bittner: Yeah. 

Ben Yelin: And a lot of people use Apple and Google in Russia. They do have employees there. 

Dave Bittner: Sure. 

Ben Yelin: So it's not like it would be no sacrifice to cease doing business in the country. There are countries where, you know, it might make sense politically for Apple and Google to cut ties - North Korea, obviously not much of a power economically. 

Dave Bittner: Right. 

Ben Yelin: They have a totalitarian government. You know, if there were - if there was a threat from the North Korean government, I think Apple and Google would be fine cutting bait to protect their reputation. But they didn't in this case, which leads me to believe that they care enough about continuing to do business in Russia - you know, even though this isn't China, this isn't, you know, the world's largest growing economy - but it leads me to believe that they have enough of a willingness to stay there that they're willing to listen to the demands of a totalitarian government. And you know, I think this gives a lot of ammunition to civil society groups saying that in all different countries around the world - not just Russia and China - they mentioned India, Myanmar and Turkey - where countries are being pressured to censor political speech or to conduct internet outages, we have to be very mindful of the fact that Apple and Google can be susceptible to that pressure. 

Dave Bittner: Yeah. 

Ben Yelin: And, you know, keep that in mind when you're using their products. You might not think it's going to affect you. It might not affect you. But, you know, I think this is somewhat of a dangerous precedent. And I think that's the lesson here. 

Dave Bittner: Let me play devil's advocate here for a second. 

Ben Yelin: Oh, you do you. 

Dave Bittner: (Laughter) Not that the devil needs an advocate, right? But what if this is a prudent first step? In other words, this is not the absolute end of this interaction between these companies and Russia because - OK, this app wasn't going to make a difference, right? I mean, Putin's going to win this election regardless of this app or not. So it's a symbolic gesture on the part of the opposition, right? 

Ben Yelin: It is a symbolic gesture. 

Dave Bittner: Yeah. 

Ben Yelin: But it's also symbolism that even though this is not a direct threat to Putin's governance or his ability to stay in power that they still - the - Google and Apple still gave in to these demands. 

Dave Bittner: Right. But where I'm going with this is Russia comes to these companies and says, hey, knock it off or we're going to arrest your people. 

Ben Yelin: Right. 

Dave Bittner: And so these companies say, OK, our No. 1 priority is the safety of our people. I think that's an appropriate response. 

Ben Yelin: Absolutely. 

Dave Bittner: So, OK, we're going to pull these apps because we don't want to - we don't want the possibility of putting... 

Ben Yelin: Our employees getting arrested. 

Dave Bittner: ...Our employees in harm's way. 

Ben Yelin: Yeah... 

Dave Bittner: Right, right. 

Ben Yelin: ...Going to Siberia. 

Dave Bittner: Yeah. So we do that to put off that possibility. But now what - I guess what I'm wondering is, what happens next? - because if you're Apple and Google, does this begin the process of you saying, all right, well, we can't have people in that country anymore if this is going to be hanging over us for every decision we make. We need to change how we do business with them. Let's get our people out of there so that this is no longer a threat that they can make against us. 

Ben Yelin: Right. I think we're not at the point where we have a definitive answer to that question. I think that remains to be seen. I'm not optimistic just because, you know, most users in Russia, just like most countries around the world, use one of two operating systems. And they happen to belong to these two tech companies who received this threat and who gave in to this threat. 

Dave Bittner: Right. 

Ben Yelin: So it's one of those things - you know, I'll believe that they just gave in to this one particular demand to protect their employees when I actually see them take further action and say, we're not going to do business in Russia if we're going to be subject to these threats... 

Dave Bittner: Yeah. 

Ben Yelin: ...Or we're going to do business in Russia, but we're not going to have any employees on the ground. Our, you know, iOS and Android's operating system will be available in the country, but we're going to have a reduced presence there because of these threats. That could happen. You know, I think until we see it happen, I think we have reason for skepticism. 

Dave Bittner: Yeah. All right. Well, time will tell. It certainly is an interesting development for sure. 

Ben Yelin: Yeah. And if you want to beat the odds on the election, I hear you can get the opposition... 

Dave Bittner: (Laughter). 

Ben Yelin: ...For - yeah... 

Dave Bittner: (Laughter) It's a long shot. 

Ben Yelin: ...100,000-to-1 odds. So go ahead and make that bet. 

Dave Bittner: (Laughter) Right. 

Ben Yelin: It might be in your sportsbook in Vegas. 

Dave Bittner: (Laughter) Yeah. If an asteroid falls out of the sky and lands on Putin, he'd still probably... 

Ben Yelin: Still probably wins. 

Dave Bittner: Yeah. 

Ben Yelin: Yeah. 

Dave Bittner: (Laughter) OK, fair enough. 

Dave Bittner: All right. Well, let's move on to my story this week. This comes from the folks over at Lawfare, and it's written by Rohini Kurup. And it's titled "Supreme Court to Hear State Secrets Case on FBI Surveillance." I put this in here knowing that this is - given how long this case has been making its way through the system... 

Ben Yelin: Yes. 

Dave Bittner: ...That it would surely be something that you would be up to speed on and probably indeed have shared with your students or had discussions with your students about. So what's going on here, Ben? We have a case hitting the Supreme Court, and this is the FBI versus Fazaga. And this had to do with a covert surveillance of Muslim communities in Southern California. This was over a decade ago that this started. But these folks who feel as though they were surveilled without - unjustly surveilled by the FBI have filed suit, and it's made its way all the way to the Supreme Court. What are the details here? 

Ben Yelin: So this, as you say, stems from surveillance that took place almost 15 years ago in Southern California. There was an FBI agent who tried to infiltrate a group of Muslims. This was the height of the war on terrorism. 

Dave Bittner: Right, so triggered by 9/11, this sort of thing. 

Ben Yelin: Absolutely. 

Dave Bittner: Yeah. 

Ben Yelin: And long story short, he was eventually discovered. The case seems to me to be very close to entrapment because it was the FBI agent who was encouraging these individuals to commit acts of violence. So the three men who are the subject of the surveillance filed a suit alleging unlawful surveillance. In most cases, this is an incredibly hard suit to get into court into (ph) first place because the nature of electronic surveillance is that it's very secretive. And to get your day in court, you need to prove standing. 

Dave Bittner: Right. 

Ben Yelin: And we know from Clapper v. Amnesty International that unless you can assert with any sort of impending certainty that you were surveilled, it's going to be very hard to get your day in court. What makes this case unique is that they have proof. They know that they've been surveilled. 

Dave Bittner: OK. 

Ben Yelin: And so that brings up a couple of other very interesting justiciability issues. There's this thing called the Foreign Intelligence Surveillance Act. You've probably heard of it. 

Dave Bittner: Yeah. 

Ben Yelin: FISA. 

Dave Bittner: FISA. 

Ben Yelin: There is a... 

Dave Bittner: By the way, this wasn't - I was not aware how far back FISA goes. It goes back to... 

Ben Yelin: 1978 - yeah. 

Dave Bittner: ...1978. Yeah. I thought the - for no particular reason other than my own ignorance of the law (laughter), I thought that this, you know, was a 9/11-era thing. But it predates that significantly. 

Ben Yelin: It was, yeah. It was expanded because of 9/11. Originally, it was enacted for a variety of reasons, one of which - and you might remember this because of your old age... 

Dave Bittner: (Laughter). 

Ben Yelin: ...Was the Church Committee in the 1970s which studied abusive government surveillance programs. So they needed to pass a law to have some sort of legal regime to do this in a way that didn't violate civil liberties. 

Dave Bittner: Right. 

Ben Yelin: One of the - one provision of the FISA law says that when dealing with classified material, the District Court can hold an in camera and ex parte hearing - meaning private, no parties available, just the District Court judge reviewing the material - to read classified material that can't be released in open court. 

Ben Yelin: That has a very interesting interplay with another tool that the government has called the state secrets privilege. The state secrets privilege is a tool used in civil cases where the government can either seek to exclude evidence or get a case thrown out of court if that case deals with what are called state secrets. And the attorney general or his or her designee has to make an affirmative statement saying information contained in this case would violate state secrets. We want you to throw this case out of court. 

Dave Bittner: OK. 

Ben Yelin: Very quick aside here. The case that is the foundational case of the state secrets privilege comes from the 1950s - United States v. Reynolds. In that case, the secret can - the state secret was invoked to protect, quote and end quote, "military information" about a plane that crashed. Turns out it was entirely bs, that there was no actual secretive information. They just didn't want to be held liable for the plane crash. And that was... 

Dave Bittner: I was - (laughter) I was... 

Ben Yelin: That was discovered 50 years later after that case. 

Dave Bittner: OK. I was going to ask you about that because it seems to me like the - like, when it comes to state secrets, who watches the watchmen? Is there any oversight, or does the government, does the Justice Department have the ability to say, this is secret because we said so and we can't tell you why? 

Ben Yelin: Pretty much. I mean, they have to make - there's a test where they have to make a substantial preliminary showing. So you have to have a little bit more than, this is a secret. We can't reveal it. 

Dave Bittner: Yeah. 

Ben Yelin: I'll say that, in my experience, judges are incredibly deferential to the executive branch when they invoke the state secrets privilege. 

Dave Bittner: OK. 

Ben Yelin: So the question in this case is whether that state secrets privilege, which the government has invoked in this case, supersedes the provision of the FISA Act, which allows cases to continue in court if there is this in camera ex parte proceeding. 

Ben Yelin: The upshot of this is if the state secrets privilege does supersede that provision of FISA, then the case is going to get thrown out of court because judges have determined that the state secrets privilege here has been properly invoked. It's not safe to hold this trial is basically what the government is saying and what the District Court potentially has agreed with because it's going to reveal state secrets. 

Ben Yelin: If they're allowed to use the provision under FISA, then the District Court judge can reveal that information privately in a classified setting, but this case would still be allowed to continue. And that might lead to these three defendants getting relief. 

Ben Yelin: So it's a big test as to whether this provision in FISA that governs the review of classified materials is going to be operative at all. Because if the court determines that the state secrets privilege supersedes that provision, of course the government's going to invoke the state secrets privilege in every case where it's remotely plausible to do so. 

Dave Bittner: Right. 

Ben Yelin: So that's at issue in this case. We're going to hear oral arguments in October, I believe, so relatively early in the term. And we'll get, I think, a good indication of how this case is going to go. 

Dave Bittner: Any sense here for what might play out? 

Ben Yelin: So the government has had pretty good - has a pretty good success rate on state secrets privilege cases. You know, one thing that the government has successfully done is used the state secrets privilege and the need to establish standing as sort of a two-headed monster. Somebody will come in and say, hey, I was surveilled. They'll say, all right, where's your proof? And they'll say, here's my proof. And they'll say, you can't bring that into court; that's state secrets privilege, so we can exclude that material. Here we finally have a case where they do have proof, which makes things a little bit more interesting. So I'm kind of 50-50 on whether this is going to succeed, and I'm not usually 50-50 when it comes to cases. I usually lean one way or another. I said October, by the way. It's going to be heard in November. 

Dave Bittner: OK. 

Ben Yelin: And there's actually another case that's going to be considered relating to the state secrets privilege as well, so we'll get a good idea on how the court views that privilege. There was a movement 10, 15 years ago to do away with the state secrets privilege or at least raise the bar for its invocation. That kind of went nowhere. It was proposed in Congress. It was never enacted. So I think, you know, we haven't really seen the court weigh in specifically on this issue in a while, so this will be our best indication. Stay tuned. 

Dave Bittner: Does the fact that this case has made its way all the way to the Supreme Court - does that have an impact on this type of surveillance at all, the fact that something like this could make it this far? Do you think that has an impact on the type of - how the FBI is coming at this and the Justice Department and so on? Is there a chilling effect there or a limiting effect? 

Ben Yelin: My instinct is no. 

Dave Bittner: OK. 

Ben Yelin: Because out of all of the surveillance that the FBI does and that the CIA does, a tiny fraction of those cases are, you know, instances where the people who are being surveilled actually discovered the surveillance and bring a lawsuit in court. They're pretty good at what they do. They're good at keeping their surveillance secretive. 

Dave Bittner: Right. 

Ben Yelin: And so even if a person has a hunch that they're being surveilled, it's very difficult to prove it and to make it into court in the first place. So I think the FBI, the CIA, all of our intelligence agencies, they're going to say, it's still worth it for us to cast a wide net in terms of surveillance. You know, if we get caught once in a while, we get caught. It's not worth curtailing our programs 'cause it's really hard for people who have been surveilled to get their day in court. So I don't think this is going to have a chilling effect on the activities of the FBI or other intelligence agencies. 

Dave Bittner: All right. Yeah. Another one, I guess, where time will tell here. We'll have to come back and check in on this one as it develops. 

Ben Yelin: Yeah. We'll talk about it, I'm sure, when the oral arguments take place in November and then when the case comes out sometime next spring. 

Dave Bittner: Yeah. Again, this is... 

Ben Yelin: We will revisit. 

Dave Bittner: ...Over on the Lawfare blog, and we'll have a link to that in the show notes. Again, we would love to hear from you. If you have a question for us, you can email us, too - And we'd be happy to answer your questions on the show. 

Dave Bittner: All right, Ben, I recently had the pleasure of speaking with Paul Karlsgodt from the law firm Baker Hostetler, and we were discussing what he describes as a recent class-action trend, and that is using existing wiretapping laws to fight against online tracking software. Here's my conversation with Paul Karlsgodt. 

Paul Karlsgodt: Most of the laws that you're talking about were passed 40, 50 - even longer - years ago that were intended to prevent mostly law enforcement actors from surreptitiously recording people on telephone technologies. And so that was the original intent of most of these laws. And then, as time went by, probably 10 to 20 years ago, there was a trend of class actions being brought for call centers and other companies using telephone technologies that were recording calls, mostly for customer service purposes. Everybody's familiar with the - this call may be monitored or recorded for customer quality assurance issues. And lawsuits were filed, essentially alleging that any time that someone recorded a consumer call without permission and without giving that kind of disclaimer that they were violating the wiretap law. And so that ultimately led to the more recent trend, which is to take that and apply it to internet communications, where anytime there's any allegation of or ability to allege that someone is recording in some way someone's activities on the internet, that also violates wiretapping laws. 

Dave Bittner: Yeah. You know, at the risk of sort of getting away from our original topic here, I mean, here in Maryland, which - where I live, this is a two-party consent state. So if you're, you know, having a telephone conversation with someone, both parties have to consent to being recorded. But there have been interesting incidences over the years where, for example, you know, someone was videotaping a police officer, and prosecutors tried to come after that person by saying that because they were recording audio and didn't have, you know, the explicit permission of the police officer, that they were going to throw the book at them using wiretapping laws - you know, an interesting avenue to pursue. 

Paul Karlsgodt: Yeah. And you see a lot of the use of these laws in a way that, really, they weren't intended to apply. They - they're really - their main intent originally was to protect citizens from Big Brother-type activities - again, mainly from law enforcement actors. So you see in that situation, it gets turned around on someone who's essentially trying to expose potential wrongdoing by the police. And you also see these laws being used in litigation to attempt to apply to technologies and situations that were really not contemplated at the time the laws were passed. 

Dave Bittner: Well, can you take us through the present day, then? You and your colleagues recently put out an alert about how perhaps some class-action firms might be coming at that. What's the current state of things? 

Paul Karlsgodt: Well, so recently, we've seen a lot of cases being filed in particular states, mainly in Florida and California, attempting to apply wiretapping laws to internet technologies called session replay technology, where certain actions that would be undertaken by someone when browsing a website get recorded for purposes of analyzing general and usually anonymized user activity. In other words, the operator of the website is trying to get an understanding of how users interact with the website to optimize the way in which people can interact with it. So that's really the technology. The argument that the plaintiffs make in those cases is that by recording user activities on websites, they're in turn recording communications that consumers are having with those websites. And so rather than the internet actions being actions, the plaintiffs claim they're communications and that those communications are being intercepted in a way that is unknown to the user. 

Dave Bittner: And have judges found this to be a compelling argument? 

Paul Karlsgodt: So far, defendants have been winning these cases. And so far, the ones that haven't reached any kind of conclusion on motions to dismiss, they have not been going well for the plaintiffs. I think you see, though, the same trend that you've seen with plaintiffs trying to apply wiretapping laws to other technologies, including call recordings, where they'll file enough cases where if they can just get traction with one judge who finds that, you know, this - sort of the novel theory of this new technology being applied to an old law actually meets the elements of a cause of action, then they can point to that - the outcome in that case in the next case. And I think the idea is if we can just get one or two judges to go along with this, then we'll start a trend, and we'll be able to bring these cases all across the country, wherever there's a two-party wiretapping-type statute. 

Dave Bittner: And, I mean, is this similar to - you know, after GDPR, we all saw all of the notifications about cookies, you know, so we had sort of a new layer of informed consent. Could that be where we're headed with this, where if companies are using this kind of monitoring technology, that, ahead of time - in the same way that the call centers had to say, we're recording this call for, you know, quality assurance? Similar to that, where they - if they inform you, then perhaps they're off the hook? 

Paul Karlsgodt: That could be where this is going. It's hard to say. Again, at this point, these are novel theories. They're really taking the statute way beyond the technologies that they were intended to apply to. And so far, as I said, the lawsuits have not been successful. It may be that the trend fizzles out, and companies don't have to go to the step of adding additional layers of notice. Obviously, there's a flip side to, you know, that, which is the notices become very annoying, and they make the user experience on websites much more cumbersome and difficult. And so it's hard to say at this point whether that will be a corporate reaction to it. You know, if you're someone who's trying to run a website and you want your website to be user-friendly, you certainly want to limit the number of disclosures that you have to give to folks when they're using it. 

Dave Bittner: Does this speak to the need for updated regulations, updated legislation? If people are, you know, reaching back decades into the past for, you know, wiretapping, you know, landline phone laws to try to apply to the modern era, does that speak to the sort of lagging nature of regulation and legislation in this area? 

Paul Karlsgodt: In part, it does. I would say I'm someone who represents corporations and generally am taking the position - and I think reasonably so - that there's no need for legislation at all, that this is not conduct that needs to be regulated. And, in fact, it's really based on assumptions that in large part are not true - in other words, that people's internet activities are being tracked in a way where someone is aware of their particular - you know, Paul Karlsgodt is actually browsing this website and doing these things on a website. That's really not what most of these technologies do. They are really tracking anonymized activity for purposes of trying to optimize experience. And so in part, the lawsuits are trying to take advantage of assumed ignorance about how some of these technologies work about the fact that a lot of judges are not going to understand the technical aspects or be unwilling to get into the technical aspects of the claim until after some discovery has been done. And certainly, the plaintiff's tactic is to try to get into discovery because it's expensive. And then, you know, if a defendant has to face either discovery or paying a settlement to get out of the case, oftentimes they'll sell. And so it's really, from my perspective, not so much a problem that needs solving, but a novel theory being brought for purposes of personal gain for primarily lawyers. Now, of course, you're getting a one-sided viewpoint from someone who defends... 

Dave Bittner: (Laughter). 

Paul Karlsgodt: ...Corporations in lawsuits. But on the other side, it is something where if there really are serious privacy concerns that are associated with either these types of technologies or other technologies that, you know, are constantly evolving, that really is a time, I think, for state legislatures and potentially Congress to get involved and consider whether there are - there is a need for new laws. Certainly, the idea of applying 50-year-old statutes to internet technologies is fraught with lots of problems because - and beyond that, the fact that these are mostly criminal statutes is also a problem because there's - you know, there's the stigmatizing effect of being accused of wiretapping. It's not simply a cause of action in a civil case. It also arguably violates criminal law in many states. So it really is kind of a square peg in a round hole kind of situation. Whether it's a problem needing solving or a solution in need of a problem is up to the listener to decide. 

Dave Bittner: Yeah. What sort of guidance have you put out for your own clients here in terms of the, you know, degree to which this should be on their radar and they should be concerned or, you know, preemptive measures they could take to try to keep them out of the crosshairs? 

Paul Karlsgodt: There's a couple things that most of our clients are already doing but that would be part of kind of what we would talk to them about. Number one, understand the technologies that you're using. Whether it's advertising technologies, these kinds of, you know, user tracking technologies that track user activities on websites, including session replay, understand what the technologies do. And once you understand what the technologies do, make sure that your privacy policy and terms of use accurately describe those technologies. If you're doing those two things, it's much more difficult for a plaintiff to make a credible argument that you're failing to disclose something to your users, let alone violating some sort of privacy right that they have. 

Dave Bittner: All right, Ben, what do you think? 

Ben Yelin: I'm very curious to see where this will go and if this is going to be a viable tool for people who are victims, if you will, of standard online tracking software. In order to sustain a class action suit, you have to prove that you - you know, a single class of people has the same issues of law and fact. 

Dave Bittner: Yeah. 

Ben Yelin: I think this is a good opportunity to do so because these online tracking tools apply to millions of people. It's not the most efficient avenue of relief for individuals because a class action suit is going to get you, you know, a couple of bucks and maybe a nice pat on the back. 

Dave Bittner: (Laughter) We all know who makes money in class action suits, Ben. 

Ben Yelin: Yep. Let's just say they all have J.D. in their title after their names. 

Dave Bittner: Right. Right. 

Ben Yelin: But it'll be interesting to see if this can be sustained under wiretapping laws. I mean, I'm kind of undecided on whether using our federal wiretapping laws is the best avenue to curb these surveillance practices. And, you know, I think there's a reasonable case that could be made that this is wiretapping in the legal definition of the term. 

Dave Bittner: Yeah. 

Ben Yelin: But I don't think that's been sufficiently established anywhere. So I'm just - I'm curious to see where this goes. 

Dave Bittner: Well, and I think as Paul and I, you know, alluded to, maybe it's time for these wiretapping laws to be updated. You know, they - in some ways, they strike me as being kind of a relic of an earlier time. And though so, you know, being applied to modern communications tools - I think there's a little creakiness there. 

Ben Yelin: Yeah, it is a relic. I mean, it was literal wiretapping. They would put taps... 

Dave Bittner: Right. 

Ben Yelin: ...On the wires. 

Dave Bittner: Right. Right. 

Ben Yelin: Like, that doesn't happen any more. 

Dave Bittner: Little alligator clips on the (laughter) - on the copper. Yeah. 

Ben Yelin: Right. Yeah. I mean, now our tools are more sophisticated... 

Dave Bittner: Yeah. 

Ben Yelin: ...So our laws should be more sophisticated. You know, generally, the trend has been to expand wiretapping laws to allow the government to collect the same amount of information from new technological sources. What legal theorists would say is, all right, if we're going to get to - if we're going to grant the government those additional powers, we should grant consumers the same rights to challenge that surveillance to keep things in a proper equilibrium. 

Dave Bittner: Oh, I see. 

Ben Yelin: That's called the equilibrium adjustment theory for you nerds out there. 

Dave Bittner: (Laughter) OK. All right. Well, we do appreciate Paul Karlsgodt for joining us. Thanks so much for taking the time. 

Dave Bittner: That is our show. We want to thank all of you for listening. The "Caveat" podcast is proudly produced in Maryland at the start-up studios of DataTribe, where they're co-building the next generation of cybersecurity teams and technologies. Our senior producer is Jennifer Eiben. Our executive editor is Peter Kilpe. I'm Dave Bittner. 

Ben Yelin: And I'm Ben Yelin. 

Dave Bittner: Thanks for listening.