CASE BACKGROUND
The California Legislature enacted the California Invasion of Privacy Act (CIPA) to ensure its citizens enjoy the constitutionally recognized right to privacy and to protect against the threat to this right posed by new surveillance technology (like online tracking software),
CIPA makes it unlawful for a third party to intercept communications between a website visitor and the website operator without the website visitor’s consent. CIPA also makes it unlawful for third parties to record, decode, or capture addressing or signaling information through use of a “pen register” or “trap and trace” device without the website visitor’s consent.
Wunderkind Corp. (Wunderkind) is an online surveillance conglomerate that allegedly uses tracking and related technology to intercept as much data as possible about individuals so it can learn about them, predict their consumer behaviors, and target them with directed advertisements. It uses its tracking software to intercept data from more than a billion individuals when they visit any of the thousands of websites on which Wunderkind’s software is installed. It also intercepts the individual’s “digital body language,” which includes things like how a cursor is moving on a webpage or the amount of time a user has been idle on a webpage. Wunderkind allegedly feeds this data into its proprietary artificial intelligence and machine learning systems to understand the intent and predict the next actions by the individual, and determine the precise moment to target him or her with a specific advertisement, such as when a person is getting ready to leave a website.
Wunderkind also matches the data to a specific individual to later target them with advertisements. It is so effective at identifying anonymous website users that it can also allegedly identify when a person is using a new device (and, therefore, connects that device to the individual) or when a person is engaging with a different platform.
The scale and scope of Wunderkind’s data collection practices are staggering. According to Wunderkind, 25% of combined total digital eCommerce revenue is driven by marketing texts and emails sent by Wunderkind to website visitors they have identified. Wunderkind also boasts that it has created consumer profiles for more than a billion people, recognized more than 9 billion devices, and tracked more than 2 trillion digital events per year.
In essence, Wunderkind, secretly and without consent, has allegedly created an ever-expanding, substantive, and durable consumer profiles for individuals that are immune to traditional privacy protections and uses that comprehensive profile to predict future behaviors to perfectly time advertisements.
