By Parna Mehrbani and Eric Beach
Businesses operating websites are facing a surge in lawsuits and demand letters alleging violations of the California Invasion of Privacy Act (CIPA) and similar laws. Plaintiffs are increasingly targeting common website technologies—such as third-party analytics, session replay tools, chat widgets, pixels, and cookies—on the theory that these tools capture or “intercept” user communications with a website without the user’s consent. These suits often seek statutory damages and injunctive relief and are sometimes filed as putative class actions as well as individual claims.
Background
Plaintiffs in these suits generally allege that:
- The deployment of trackers, pixels, session replay scripts, cookies, or chat integrations results in the contemporaneous interception and recording of user communications with a website;
- The capture of data such as keystrokes, clicks, page navigation, form entries, chat content, IP addresses, device identifiers, and browsing metadata, constitutes “wiretapping” of communications in transit under CIPA and similar laws;
- The involvement of third-party vendors (for analytics, marketing, or customer support) makes those vendors unconsented “eavesdroppers,” or renders the website operator liable for facilitating the interception by a non-party; and/or
- General disclosures in privacy policies are inadequate, and any purported consent obtained through general terms is insufficiently specific, not affirmatively obtained, not sufficiently granular, or not contemporaneous with the interception.
Risks
- Statutory exposure: The privacy laws provide for statutory damages, creating significant exposure and settlement pressure even for technical or disputed violations.
- Class actions: Plaintiffs frequently file on behalf of putative statewide classes, magnifying potential liability.
Risk Reduction Steps
Businesses should consider the following measures to reduce litigation risk:
- Inventory and Mapping
- Inventory all website tracking technologies, including pixels, software development kits, cookies, session replay, A/B testing, analytics, attribution, and chat tools.
- Map data flows to identify which communications and fields are captured, when capture occurs, and which third parties receive data.
- Affirmative Consent and Disclosures
- Implement an opt-in consent banner for users that is conspicuous, layered, and delineated by purpose or category.
- Ensure disclosures clearly explain what data is being captured (including content of communications, if applicable), how, why, and with whom it is shared.
- Avoid loading non-essential trackers prior to affirmative consent, and honor user selections across sessions when feasible.
- Technical Controls
- Configure session replay tools to redact or suppress keystrokes, personally identifiable information, and payment or health information by default.
- Regularly test that trackers do not fire before consent and that opt-outs function across devices and browsers.
- Disable or limit features that capture unnecessary content (for example, masking or blocking session replay of sensitive fields and unsubmitted form entries).
- Policy and Recordkeeping
- Update privacy policies, cookie notices, and other disclosures to reflect tracking practices and third-party sharing with specificity.
- Maintain records of consent events, configuration settings, data retention schedules, and periodic audits.
- Incident and Litigation Readiness
- Prepare a response playbook for demand letters and complaints, including preservation steps, log capture, and technical explanations of configurations.
- Reassess insurance coverage for privacy claims and consider endorsements that address CIPA-related allegations.
How We Can Help
This client alert provides general information and does not constitute legal advice. Our team advises on risk assessments, consent design, and litigation strategy for CIPA and related privacy claims. For advice about your specific circumstances, please contact Eric Beach and Parna Mehrbani.
