The District Court for the Northern District of Illinois recently granted in part a motion to dismiss a putative class action complaint asserting wiretapping, Illinois Biometric Information Privacy Act (“BIPA”), and consumer protection claims relating to their eufy home security cameras and video doorbells (the “Eufy Products”).  See Sloan, et al. v. Anker Innovations Ltd., No. 22-CV-7174 (N.D. Ill. Jan. 9, 2024).  Plaintiffs contend in their complaint that the Eufy Products applied a facial recognition program to differentiate images of known and unknown individuals within home security services and purportedly misrepresented data storage and encryption practices for the Eufy Products.

While the court allowed some of the BIPA and consumer protection claims to proceed past a motion to dismiss, it granted defendants’ motion to dismiss on several grounds:

  • Federal Wiretap Act The court dismissed plaintiffs’ federal Wiretap Act Claim (8 U.S.C. § 2510), ruling Defendants, who own and operate the eufy Security app, cannot be liable under the Act because they are a “party to the communication.”  The court reasoned that the communication with the app “necessarily requires” defendants’ participation, and allegations that defendants subsequently uploaded the data to a third-party server do not transform the actions into an interception.
  • BIPA The court dismissed this claim as to non-Illinois residents because the statute does not apply extraterritorially, and plaintiffs “failed to allege sufficient facts to tie their harm to Illinois.”  On the latter point, the court rejected plaintiffs’ argument that an Illinois choice of law provision in the terms of service could expand the reach of the statute beyond Illinois.  
  • Illinois Consumer Fraud Act – The court likewise dismissed the Illinois Consumer Fraud Act claims for non-Illinois plaintiffs on extraterritoriality grounds.
  • Other Consumer Protection Claims (Illinois, New York, Massachusetts, Florida) – The court dismissed all the consumer protection claims to the extent they relied on the following statements:  (1) “your privacy is something that we value as much as you do,” (2) “that’s just the start of our commitment to protect you, your family and your privacy,” (3) “privacy and protection are our top priorities,” (4) “your privacy is our priority,” and (5) “to start, we’ve taken every step imaginable to ensure that your data remains private, with you.”  The court found that these statements amounted to non-actionable “puffery” because they related to “general values and priorities of a company” and were “subjective, not objective facts that one can prove true or false.” 

These remain important defenses for defendants to consider when faced with wiretapping, BIPA, or other privacy-related claims.

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Françoise Djoukeng

Fran Djoukeng is an associate in the Palo Alto office where she practices in the firm’s Corporate Practice Group. She focuses on corporate governance and emerging companies.

Previously, she clerked for the Honorable Ryan D. Nelson of the U.S. Court of Appeals for…

Fran Djoukeng is an associate in the Palo Alto office where she practices in the firm’s Corporate Practice Group. She focuses on corporate governance and emerging companies.

Previously, she clerked for the Honorable Ryan D. Nelson of the U.S. Court of Appeals for the Ninth Circuit and for the Honorable Percy Anderson of the U.S. District Court for the Central District of California.

Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She specializes in defending clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved…

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She specializes in defending clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved significant victories for clients in the technology, entertainment, consumer product, and financial services industries. In addition, Kate has substantial 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), and common law and constitutional rights of privacy, among others.