There are increasingly contested views over the balance between privacy for individuals and maximizing technological advancements for personalized business services. Website tracking methods, such as cookies and a wide range of available analytics tools, enable companies to monitor user behavior, gather valuable data, and enhance user experiences. However, these practices are also raising significant privacy concerns and legal risk, particularly when users are unaware of the extent of the data collection or have not provided explicit consent.
What is the California Invasion of Privacy Act (CIPA)?
The California Invasion of Privacy Act (CIPA) is emerging as a critical battleground in this conflict. Enacted decades ago, CIPA was designed to protect individuals from unauthorized wiretapping and eavesdropping. Plaintiffs' attorneys have recently repurposed CIPA to challenge modern digital tracking practices. They allege that tracking technologies are unlawful “pen registers” or “trap and trace” processes, and that using tracking technologies without user knowledge and consent is a privacy violation. This reinterpretation of CIPA underscores the legal complexities and evolving nature of privacy rights in today’s digital age.
If CIPA is successfully litigated in relation to digital tracking, it will be costly. CIPA allows for statutory damages of $5,000 per violation. That would pose significant financial risk to companies where claims of alleged violations are asserted on behalf of a class.
As businesses strive to harness and utilize the power of data while also safeguarding user privacy, tension continues to mount. Recent legal battles, such as those seen in Licea v. Hickory Farms and Levings v. Choice Hotels, showcase the judicial uncertainty and varied outcomes that characterize this ongoing struggle. Courts are tasked with determining whether the use of tracking tools violates privacy laws and if users' website visits implicitly signify consent to such monitoring.
To navigate this contentious landscape, businesses must adopt proactive compliance measures, ensuring transparency and user consent in their data practices. By addressing privacy concerns head-on, companies can mitigate the rising legal risks and foster a more respectful and secure digital environment for all users.
What About CCPA and CPRA in California?
The California Consumer Privacy Act (CCPA) was signed into California law in 2018. The privacy law was amended by the California Privacy Rights Act (CPRA) in 2020, with the final phase of enforcement introduced in 2024.
Inspired by California, over a dozen other U.S. states have passed similar privacy laws. To this point, most of these state laws, including California’s, do not grant consumers a private right of action for violations, except in cases of data breaches. Critics contend that without this private right of action, enforcement is insufficient to ensure compliance. As a result, plaintiffs' attorneys in California have pursued the alternative legal strategies of CIPA.
Privacy Compliance and Your Business’s Digital Solutions
Privacy laws throughout the world are rapidly changing. At Americaneagle.com, our teams are consistently working with clients, as well as appropriate governing bodies, to deploy digital strategies that successfully consider and comply with privacy expectations. Are you uncertain about the privacy risks within your business’s current digital solutions? We can help. Contact Americaneagle.com today.
Additional Resource: CIPA Update from the American Bar Association
*The content herein is for informational purposes only and is not intended to be taken as legal advice. If you have any legal concerns, we encourage you to seek competent legal counsel for advice.
