On June 13, 2024, Law360 published “California Has a Duty to Curtail Frivolous CIPA Suits,” an Expert Analysis authored by Steven Stransky and Jennifer Adler of Thompson Hine LLP, along with Washington Legal Foundation attorney Glenn Lammi. The full text of the analysis is available on the firm’s website here.

As the Expert Analysis discusses, plaintiffs’ lawyers have increasingly filed lawsuits alleging that websites’ use of cookies and pixels violates the California Invasion of Privacy Act (CIPA), a law the state legislature adopted to deter the practice of illegally recording private telephone, or other verbal, conversations. The authors explain that another more recently adopted set of laws, the California Consumer Privacy Act and the California Privacy Rights Act of 2020, specifically regulate businesses’ use of cookies and pixels, and do so in a manner that balances consumer privacy with businesses’ interests. Attempts to regulate cookie and pixel use through CIPA litigation, the authors note, directly conflict with regulation under the two newer state laws, creating legal uncertainty and imposing costs needlessly borne by consumers.

The article argues that the state legislature, not the judiciary, is the proper branch of California government to address the inequities arising from rising CIPA litigation, and provides four suggestions for amendment of CIPA.

Mr. Stransky and Ms. Adler, along with Thompson Hine LLP partner Kip T. Bollin, authored a comprehensive March 2024 WLF Working Paper “No Cause of Action: California’s Pen/Trap Law Inapplicable to Web Ad Cookies and Pixels.”