Don’t use immigrant communities to defend predatory lawsuits

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OPINION — As an attorney who has spent many years litigating privacy rights, I take seriously any claim that legislation could make vulnerable families less safe.

That is why I am disappointed to see opponents of SB 690 invoke immigrant communities to defend an abusive lawsuit industry.

The facts simply do not support the argument. Of more than 4,000 California Invasion of Privacy Act (CIPA) lawsuits filed in recent years, not a single case alleges immigration-related harm, or that an immigrant was harmed, defrauded or subjected to immigration enforcement because of technology on a website.

The recent wave of CIPA litigation is not about immigration. It is not about protecting vulnerable families from bad actors — in fact, it’s quite the opposite. These lawsuits overwhelmingly target the most vulnerable entities among us: food banks, health clinics and other small businesses, nonprofits and public agencies using ordinary website technologies providing critical help, such as analytics tools, appointment scheduling software, chat features, payment processors, and other services that millions of startups, small businesses, and Californians trying to make their entrepreneurial dreams come true rely on every day.

The lawsuits even target website use of ADA accessibility tools, which are necessary for compliance, as well as cybersecurity and identity verification tools, which are necessary to prevent fraud and cyber-attacks.

Community clinics, legal aid organizations, immigrant-serving nonprofits, ethnic media outlets and advocacy organizations use these tools every day to translate information, schedule appointments, process donations, answer questions, and connect people with critical services.

In today’s legal environment, they face the very same litigation risk as the thousands of businesses, nonprofits, healthcare providers, educational institutions, and public agencies that have already been sued.

Ironically, many of the organizations opposing SB 690 have websites that rely on the very same technologies plaintiffs’ lawyers routinely characterize as illegal “wiretapping.”  The opposition doesn’t even know what they’re opposing because their websites use third-party cookies and pixels without any opt-in consent.

That is the reality lawmakers began to confront on July 1, when the Assembly Privacy and Consumer Protection Committee unanimously advanced SB 690 with amendments.

The committee’s action represented an important acknowledgment that California’s 1967 wiretapping law, written decades before the internet existed, is being stretched far beyond its original purpose and used to target routine technologies that organizations rely on every day.

But there is still more work to do.

While the committee’s amendments addressed one avenue for abusive litigation, they left untouched another section in CIPA that continues to generate many of these lawsuits. As long as that loophole remains, thousands of California organizations, including small businesses, nonprofits, schools, healthcare providers, and local governments, will continue to face costly litigation over ordinary website functions.

The real winners under the current system are not immigrant families. They are a small group of plaintiffs’ lawyers who have built a lucrative business model around threatening organizations with expensive litigation.

When a neighborhood health clinic, a local legal aid organization, a family-owned restaurant, an ethnic newspaper, or a small nonprofit receives one of these demand letters, they often discover it is less expensive to settle than spend years defending themselves in court even when they have done nothing wrong.

Opponents of SB 690 have attempted to recast this debate as one about immigration, suggesting the bill would somehow expose vulnerable communities or weaken protections for sensitive personal information. That is simply not what the legislation does and that is not what we want it to do.

This bill has already seen tremendous support from immigrant-backed organizations, such as the Bay Area Hispano Institute for Advancement, California Hispanic Chambers of Commerce, Hispanic Chambers of Commerce San Francisco, Latin American and Caribbean Business Chamber, Latino Restaurants Association, Latino Times newspaper, LULAC California, Solano Hispanic Chamber of Commerce and United Latinos Action.

California already has the strongest consumer privacy protections in the nation, including the California Consumer Privacy Act. SB 690 does not weaken those protections or affect immigration status.

In fact, SB 690 expressly preserves protections for sensitive immigration and medical information while ensuring that CIPA is not stretched beyond its original purpose to target ordinary website technologies.

California can protect individual privacy and protect small businesses, nonprofits, and community organizations at the same time.

The Assembly took an important first step on July 1. Now lawmakers should finish the job by closing the remaining loophole that continues to fuel abusive litigation.

Immigrant communities deserve real protections, not to be used to preserve a broken legal system.

Usama Kahf is a partner at Fisher Phillips specializing in privacy and data security.