735 F.Supp.3d 1169
N.D. Cal.2024Background
- Plaintiffs allege Nuance Communications, Inc. provided AI-based voice recognition technology (Gatekeeper) to businesses—including Chase Bank—to record, analyze, and create "voice prints" from customer call center conversations without customer knowledge or consent.
- Plaintiffs claim their confidential calls with Chase were recorded and used by Nuance to generate biometric data, which was then stored in a database for future authentication and fraud prevention.
- Plaintiffs seek relief under three sections of the California Invasion of Privacy Act (CIPA): §§ 631(a) (wiretapping), 632(a) (eavesdropping/recording confidential communications), and 637.3 (voice-stress analysis without consent).
- Nuance moved to dismiss, arguing Plaintiffs consented through Chase account agreements, is not a third party under CIPA, and its software does not determine the "truth or falsity" of statements within the meaning of § 637.3.
- The procedural posture is a motion to dismiss under Rule 12(b)(6); the court reviews the complaint’s factual allegations as true.
- The court granted in part and denied in part the motion—dismissing only the § 637.3 claim with leave to amend, but allowing the § 631 and § 632 (recording) claims to go forward.
Issues
| Issue | Plaintiff’s Argument | Defendant’s Argument | Held |
|---|---|---|---|
| Consent to Voice Recording | No knowledge or written consent to Nuance’s activity | DAAs and privacy policy disclose and obtain consent | Issue of consent not suitable for dismissal; goes forward. |
| Third Party Status under CIPA | Nuance is a third party with capability to use data | Nuance is merely a tool for Chase, not an independent | Allegations sufficient; Nuance plausibly a third party. |
| Interception of Communication’s Content | Nuance analyzes content (not just characteristics) | Only analyzes characteristics; not contents/meaning | Complaint alleges content interception; motion denied. |
| “Use” under Section 631 | Nuance “uses” data to create/compare voice prints | Only for Chase’s benefit, not Nuance’s own | Any use suffices; not limited to Nuance's own benefit. |
| Section 637.3 (Voice Truth/Falsity) | Nuance’s tech determines truth of caller statements | Gatekeeper only authenticates identity (not a lie detector) | Complaint insufficient; § 637.3 claim dismissed w/ leave. |
Key Cases Cited
- Ribas v. Clark, 38 Cal. 3d 355 (Cal. 1985) (distinguishes between third-party eavesdropper and participant using a recording device; basis for third party doctrine)
- Tavernetti v. Superior Ct., 22 Cal. 3d 187 (Cal. 1978) (describes the independent patterns of conduct under CIPA § 631)
- Rogers v. Ulrich, 52 Cal. App. 3d 894 (Cal. Ct. App. 1975) (holds only third parties, not call participants, liable under § 631)
- Flanagan v. Flanagan, 27 Cal. 4th 766 (Cal. 2002) (interprets "confidential communication" for § 632)
- Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95 (Cal. 2006) (allows liability for recording own conversation if no consent)