A U.S. District Court Judge in California dismissed a putative class action asserting claims under section 637.7 of the California Invasion of Privacy Act (CIPA) in a case that could have useful implications for automotive and other device manufacturers whose products have the ability to track location.  Plaintiff claimed that a third-party company, Otonomo Inc., partnered with automobile manufacturers to use the telematics control units (TCUs) installed in their vehicles to track a driver’s location via GPS without the driver’s knowledge.  The Court rejected the claim, holding that because the TCU devices were built-in, rather than devices added to a vehicle, they were not “attached” to the car and thus did not fall within the statute’s definition of “electronic tracking device.”

In the case, Mollaei v. Otonomo Inc., 3:22-cv-02854, the plaintiff alleged that Otonomo’s use of data from the TCUs constituted a violation of California Penal Code Section 637.7.  The statute prohibits the use of “an electronic tracking device to determine the location or movement of a person” absent consent or warrant. “Electronic tracking device” is defined as “any device attached to a vehicle or other movable thing” which could transmit its location.  Id. at 4.  The Court noted that “Plaintiff’s application of Section 637.7 to a built-in component of a vehicle, as opposed to a standalone device, is one of first impression.”  Id.  

Relying in part on prior case law dismissing Section 637.7 claims against mobile phone applications, as well as the legislative history of the statute, the Court identified the key question to be whether the built-in component was “attached” within the meaning of the statute.  The Court accepted the defendant’s arguments on that question, finding “that the ‘device’ must be a separate device that is attached, or placed, onto an automobile by the alleged wrongdoer.”  Id. at 5.  The TCUs were not a removable part, and it was not possible to purchase a vehicle without one, so the Court concluded the TCU did not fall within the statutory definition.

The Court also agreed that to fall within the ambit of Section 637.7, a device must track more than just a vehicle and instead must associate the location or movements of a vehicle with the identity of a person.  Id. at 7.  Although the plaintiff alleged that Otonomo could obtain customer data from the manufacturer, they did not sufficiently allege that Otonomo had linked this data to the location tracking.  Finally, regarding plaintiff’s claim that he had not consented to Otonomo’s data collection, a necessary element of a Section 637.7 claim, the Court found plaintiff’s allegations lacking.  The complaint failed to allege that he had not consented to location tracking by BMW, the manufacturer, so plaintiff could not seek to hold downstream processor Otonomo liable because “[s]ubsequent processing of the location or movement information is not within the scope of the statute.”  Id. at 8. 

These combined holdings should provide helpful clarification on the scope and meaning of Section 637.7 and identify useful defenses to claims brought under this statute for companies in the automotive tech space and other industries incorporating location-based technology.

Photo of Sam Greeley Sam Greeley

Samuel Greeley is an associate in the firm’s Washington, DC office representing clients in complex civil litigation and government investigations. Sam’s practice focuses on a broad range of high-stakes issues facing companies in the tech sector, including class actions, antitrust investigations and litigation…

Samuel Greeley is an associate in the firm’s Washington, DC office representing clients in complex civil litigation and government investigations. Sam’s practice focuses on a broad range of high-stakes issues facing companies in the tech sector, including class actions, antitrust investigations and litigation, and federal agency enforcement matters. This includes advising clients on issues relating to cryptocurrency and digital assets, and how they can stay ahead of the quickly evolving enforcement and litigation landscape. He has also defended clients from class actions and white collar investigations in other industries, including life sciences and healthcare.

Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy co-chairs the firm’s Class Actions Litigation Practice Group and serves on the leadership committee for the firm’s Technology Industry Group. She defends clients in complex, high-stakes class action disputes and has achieved significant victories across various industries, including technology, entertainment, consumer…

Kate Cahoy co-chairs the firm’s Class Actions Litigation Practice Group and serves on the leadership committee for the firm’s Technology Industry Group. She defends clients in complex, high-stakes class action disputes and has achieved significant victories across various industries, including technology, entertainment, consumer products, and financial services. Kate has also played a key role in developing the firm’s mass arbitration defense practice. She regularly advises companies on the risks associated with mass arbitration and has a proven track record of successfully defending clients against these challenges.

Leveraging her success in class action litigation and arbitration, Kate helps clients develop strategic and innovative solutions to their most challenging legal issues. She has extensive experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws, including the Sherman Act, California Consumer Privacy Act (CCPA), California Invasion of Privacy Act (CIPA), Wiretap Act, Stored Communications Act, Children’s Online Privacy Protection Act (COPPA), Video Privacy Protection Act (VPPA), along with common law and constitutional rights of privacy, among others.

Recent Successes:

Represented Meta (formerly Facebook) in a putative nationwide advertiser class action alleging violations under the California Unfair Competition Law (UCL) related to charges from allegedly “fake” accounts. Successfully narrowed claims at the pleadings stage, defeated class certification, opposed a Rule 23(f) petition, won summary judgment, and defended the victory on appeal to the Ninth Circuit. The Daily Journal selected Covington’s defense of Meta as one of its 2021 Top Verdicts, and Law.com recognized Kate as a Litigator of the Week Shoutout.
Defeated a landmark class action lawsuit against Microsoft and OpenAI contending that the defendants scraped data from the internet for training generative AI services and incorporated data from users’ prompts, allegedly in violation of CIPA, the Computer Fraud and Abuse Act (CFAA), and other privacy and consumer protection laws.

Kate regularly contributes to the firm’s blog, Inside Class Actions, and was recently featured in a Litigation Daily interview titled “Where Privacy Laws and Litigation Trends Collide.” In recognition of her achievements in privacy and antitrust class action litigation, the Daily Journal named her as one of their Top Antitrust Lawyers (2024), Top Cyber Lawyers (2022), and Top Women Lawyers in California (2023). Additionally, she received the Women of Influence award from the Silicon Valley Business Journal and was recognized by Daily Journal as a Top Attorney Under 40.