Navigating California’s Website Tracking Lawsuits After a Key Pro-Business Ruling
For the past several years, businesses with an online presence in California have found themselves in the crosshairs of an aggressive and costly wave of litigation. Plaintiffs’ attorneys, wielding a 1960s-era anti-wiretapping law, have filed hundreds of class-action lawsuits targeting the use of common, everyday website technologies like analytics pixels and marketing trackers. The central claim is that these tools, provided by platforms like TikTok and Meta, function as illegal surveillance devices under the California Invasion of Privacy Act (CIPA). However, a recent decision in Heiting v. HP, Inc. has provided a powerful new defensive tool for businesses, signaling a potential shift in this volatile legal landscape.
While this ruling is a significant victory, the fight is far from over. California’s courts remain deeply divided on the issue, creating a legal minefield for unwary businesses. Understanding this complex environment—and taking proactive steps to mitigate risk—is now an essential part of digital compliance.
A 1960s Law in a 21st Century World
The California Invasion of Privacy Act was enacted in 1967 to combat threats from then-new eavesdropping technologies like telephone wiretaps. The recent lawsuits focus on two specific CIPA provisions: the prohibitions against “pen registers” and “trap and trace devices”. Historically, a pen register was a device that recorded outgoing numbers dialed from a specific phone line, while a trap and trace device identified the source of incoming calls.
The novel legal theory driving this litigation argues that modern website tracking pixels—tiny, invisible snippets of code that send data about a user’s activity back to a third-party server—are the digital equivalent of these devices. Plaintiffs allege that when a user visits a website, a tracking pixel from a social media company (the software in the
HP case was the TikTok pixel) captures the user’s “addressing” information (like their IP address) and sends it to the third party, which then uses the data to identify, or “fingerprint,” the user for targeted advertising. Because this is done without a court order, plaintiffs argue it violates CIPA, triggering statutory damages of $5,000 per violation.
The Heiting v. HP Decision
In the August 1 decision, a Los Angeles Superior Court decisively rejected this theory. The plaintiff alleged that HP’s use of a third-party social media pixel on its website constituted an illegal “trap and trace” device.
The court dismissed the case based on a fundamental reading of the statute. It reasoned that a trap and trace device is meant to identify incoming communications from third parties to a target—like law enforcement seeing who is calling a suspect. The interaction between a user and a website, the court found, is a direct, two-way communication initiated by the user. The court stated that the “statute prohibits receiving unauthorized information about incoming communications from other parties – not information that passes between plaintiff and defendant when plaintiff contacts the defendant”.
Critically, the court also invoked the “absurd result” doctrine, noting that if CIPA were interpreted as broadly as the plaintiff argued, “every cell phone in the world…would be a prohibited trap and trace device. So would every website interaction that identifies electronic information about the user in a manner that allows the website to function”.
Perhaps most tellingly, the court dismissed the case without leave to amend. This is a powerful procedural step indicating the court believed the legal theory was not just flawed, but fundamentally incurable.
A Fractured Judiciary Creates a Minefield for Business Owners
The HP decision is a major win, but it is not a silver bullet. It joins a growing pro-defense trend from other courts that have dismissed similar claims, such as in Palacios v. Fandom, Inc. and Sanchez v. Cars.com Inc.. These courts have similarly concluded that CIPA was intended to regulate telephone technology, not routine internet functions.
However, other California state and federal courts have reached the opposite conclusion, allowing nearly identical lawsuits to proceed. In cases like Heiting v. IHOP Restaurants and Shah v. Fandom, Inc., judges have denied defendants’ motions to dismiss, finding it plausible that tracking pixels could function as illegal pen registers or trap and trace devices under CIPA. This judicial split means the outcome of a CIPA lawsuit can depend entirely on the courtroom in which it is filed. As one judge noted, the courts would “benefit from appellate guidance” to resolve this inconsistency.
A Proactive Defense: Three Steps to Mitigate Your CIPA Risk
Given this uncertainty, a passive, wait-and-see approach is untenable. Businesses must be proactive. A robust risk-mitigation strategy should include three key pillars:
- Audit Your Digital Footprint: You cannot defend what you do not understand. Conduct a comprehensive technical scan of your website to inventory every third-party pixel, cookie, and script in operation. It is critical to map what data each tool collects and where it is being sent.
- Enhance Your Disclosures: Your privacy policy and cookie banners must be explicit. Vague language like “we use cookies to improve user experience” is no longer sufficient. Disclosures should clearly state that the site uses tracking technologies that share data, including IP addresses, with third-party advertising and social media partners.
- Strengthen User Control: Implement a modern consent management platform that gives users a clear and easy choice to opt in or out of non-essential tracking. The option to “Reject All” should be as prominent as the option to “Accept All.” For maximum protection, consider configuring trackers to be blocked by default for California users until they provide affirmative consent.
The Heiting v. HP decision provides a well-reasoned and powerful argument against the overextension of CIPA. But until higher courts provide clarity, the litigation risk remains acute. By taking decisive, proactive steps to audit their technology and enhance transparency, businesses can build a strong defensive posture to navigate this evolving legal challenge.