In recent developments in California, a novel legal trend is reshaping the dialogue around digital privacy and website user tracking. Over fifty class-action lawsuits have been initiated since November 2023, targeting website operators for allegedly installing software that acts as an illegal “pen register.” This marks a significant shift from previous legal challenges that predominantly leveraged wiretap laws, introducing a more effective approach that could set new precedents in online privacy litigation. This blog, “How The Rise of Pen Register Lawsuits Impacts California’s Online Landscape”, seeks to expand awareness of potential class action privacy lawsuits emerging from older legislation and how companies can avoid becoming a defendant in such actions.

Understanding the New Legal Strategy

The core of these class action lawsuits lies in the application of the “pen register” theory under the California Invasion of Privacy Act (CIPA). Under CIPA, pen registers are devices or processes that record or decode dialing, routing, addressing, or signaling information (often referred to as DRAS) transmitted by an instrument or facility from which a wire or electronic communication is transmitted. CIPA mandates that such devices can only be installed with either a court order or the explicit consent of the consumer. CIPA allows for statutory damages of $5,000 per violation.

The lawsuits allege that the software installed by various website operators functions as a pen register by monitoring user activity and decoding device data without capturing content.  A pivotal moment came with the Greenley v. Kochava case in July 2023, where the court recognized software as a form of “pen register.” The court held that software that identifies consumers, gathers data, and correlates that data through unique ‘fingerprinting’ is a process that falls within CIPA’s pen register definition.

The Legal Viability and Challenges Ahead

A critical aspect of these cases will be the battle over consent. The law allows for the installation of pen registers with consumer consent, a provision that could become a central point of contention. Proving whether users have knowingly consented to such tracking practices will be crucial for both plaintiffs and defendants.

Important Business Implications

The emerging wave of litigation underscores the evolving nature of online privacy laws and the increasing legal scrutiny over user tracking practices. Companies are advised to meticulously review their tracking software and data collection practices to ensure compliance with the law. The trend of pen register lawsuits (especially as they begin to be filed in federal courts), signals a heightened legal risk and a clear message to the industry to prioritize user privacy and consent.

Looking Forward

As the legal landscape continues to evolve, the rise of pen register lawsuits in California may herald a new era in digital privacy litigation. Experts predict an increase in such cases, emphasizing the need for companies to stay abreast of legal developments and proactively adapt their practices. The ultimate goal is to foster an online environment that respects user privacy while balancing the technological advancements that drive the digital economy.

This trend is a clear indication that the conversation around digital privacy is far from over. As technology continues to advance, so too will the legal frameworks that seek to regulate it. Companies operating in the digital space must remain vigilant, ensuring their consent management practices align not only with current laws but also with the evolving expectations of privacy and consent in the digital age.

Tealium‘s Consent Orchestration Framework is designed to empower companies operating in the digital space to navigate these complexities with confidence. Our solution provides a robust toolset tailored to ensure that companies can efficiently and effectively adapt to the ever-changing landscape of digital privacy laws and regulations.

Key Benefits of Tealium’s Consent Orchestration Framework Include:

  • Comprehensive Consent Management: Seamlessly integrate consent collection across your digital properties, ensuring that user preferences are respected and recorded in compliance with legal requirements.
  • Adaptability to Legal Changes: Stay ahead of legal developments with a flexible framework that can be quickly adjusted to accommodate new laws and regulations, ensuring your company remains compliant.
  • Enhanced User Trust: By transparently managing consent, Tealium helps reinforce your commitment to user privacy, fostering trust and loyalty among your customers.

In an era where digital privacy is at the forefront of legal and consumer concerns, ensuring your practices align with these expectations is not just a legal necessity—it’s a competitive advantage. Tealium’s Consent Orchestration Framework equips your company with the tools needed to maintain compliance, respect user privacy, and pave the way for a more secure and trustworthy digital economy.

Take action today to ensure your company is prepared for the future of digital privacy. Learn more about how Tealium can support your compliance efforts and help safeguard your business against the risks of non-compliance. Plus, explore Tealium’s Consent Orchestration solutions.

Post Author

DJ Landreneau
DJ Landreneau is the Director of Data Privacy Strategy, Policy and Compliance at Tealium.

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