Website Tracker Litigation Continues to Pose Compliance Headache: Updates on CIPA and Related Litigation

Quick Hits

• Litigation remains steady and costly. Hundreds of lawsuits and arbitration demands continue to allege that website-tracking technologies—such as pixels, analytics tools, and chat features—violate the California Invasion of Privacy Act and related privacy laws. Despite mixed judicial outcomes, the volume of filings has not slowed.
• Courts are deeply divided. Some judges have dismissed cases on standing or “contents” grounds, while others allow claims to proceed where third-party vendors can access or use data for their own purposes. The lack of uniform interpretation continues to fuel new filings.
• AI is reshaping the conversation. Plaintiffs are beginning to extend these same theories to generative-AI and chatbot tools, arguing that AI systems “listen” to or repurpose user inputs without appropriate consent.
• Legislative clarity is still out of reach. Senate Bill 690, which would have excluded routine commercial tracking from the California Invasion of Privacy Act’s scope, failed to advance in 2025—leaving businesses with the same patchwork of inconsistent rulings and few near-term answers.

While the legal theories are evolving, the trend is clear: courts are testing how older privacy laws apply to a digital-marketing and increasingly connected world. Organizations that collect or analyze user interaction data may want to closely examine how their tracking technologies function, understand how existing privacy laws may apply, and implement measures to manage associated risks.

Evolving Litigation Landscape

Recent complaints often combine claims under CIPA §§ 631(a) and 632.7 (California’s wiretap and eavesdropping provisions) with “trap-and-trace” allegations under § 638.51. In some cases, plaintiffs also append claims under the federal Wiretap Act or the Video Privacy Protection Act (VPPA). These hybrid filings seek to capture nearly any instance in which a website, through an embedded pixel, session-replay tool, or chatbot, transmits user interaction data to a third-party vendor.

Courts have taken inconsistent approaches to these claims. Some have dismissed them at the pleading stage, reasoning that a website operator cannot “intercept” its own communications with a visitor, or that metadata such as IP addresses and click paths do not reveal the “contents” of a communication. Others have allowed cases to proceed where the technology captured free-text inputs, chat messages, or search queries that arguably constituted the substance of a user’s communication. The result is an increasingly fragmented body of CIPA decisions and uncertainty for companies trying to comply.

As companies integrate AI-powered chat and personalization tools, plaintiffs have begun to test whether these tools “record” or “repurpose” user inputs in a way that triggers CIPA’s consent requirements. Because many AI models process prompts in opaque ways and may rely on vendor-hosted infrastructure, they raise additional questions about whether a “third party” is effectively accessing user communications.

Recognizing the way in which CIPA was being weaponized against businesses, California lawmakers introduced Senate Bill 690, which would clarify that “routine commercial tracking” does not violate the statute. However, the bill ultimately stalled and was unable to pass during the 2025 legislative session, leaving the uncertain status quo in place for businesses trying to navigate this area.

What’s Next for Tracker Litigation?

The parabolic trajectory of website-tracking litigation shows no signs of slowing. Plaintiffs’ firms continue to aggressively file new cases, experimenting with overlapping theories of liability and often amending once their initial theory is shot down. Even as some courts have rejected CIPA claims at the pleading stage, the persistence and volume of filings have turned this into one of the most active areas of privacy litigation nationwide. And sometimes plaintiffs are permitted to amend several times before their complaints are ultimately tossed out for good.

What began as a California phenomenon has quickly spread beyond the state’s borders. Plaintiffs are invoking CIPA against companies that may have little or no connection to California other than maintaining a website accessible to its residents. A number of California and federal courts have dismissed cases on personal-jurisdiction grounds, but others have allowed them to proceed, creating an additional layer of uncertainty for companies that operate nationally or globally. The result is a litigation landscape that remains inconsistent, but not unpredictable: even when the legal theories are thin, the cost of defense and the potential exposure both continue to drive risk.

At the same time, the next wave of claims is beginning to take shape around artificial intelligence. Generative-AI tools—particularly chatbots and recommendation engines that rely on user inputs—are becoming the focus of new demand letters and early-stage complaints. Plaintiffs contend that these “AI listeners” intercept or repurpose communications without sufficient consent, borrowing the same reasoning that fueled earlier suits against pixels and session-replay tools. These theories remain largely untested, but they reflect how quickly the focus of privacy litigation adapts to new technology.

Legislative efforts to resolve this uncertainty have so far stalled. Senate Bill 690, which would have clarified that “routine commercial tracking” does not violate CIPA, did not advance during the 2025 legislative session. Its failure leaves businesses to navigate the same patchwork of inconsistent rulings that has characterized the past two years. Until greater clarity emerges, companies can expect continued filings and evolving pleadings designed to exploit the lack of uniformity in how courts interpret key CIPA provisions.

Ultimately, tracker litigation appears poised to remain a fixture in the privacy landscape for the foreseeable future. For businesses, the near-term focus is less about legal claim certainty and more about preparation—understanding data flows, documenting (and adjusting, if appropriate) consent mechanisms, and maintaining defensible governance practices while the law continues to evolve.

Practical Considerations

What began as “nuisance litigation” has, at the very least, spurred broader—and indeed, important—conversations around website tracker governance and the precise nature of tools present on a company’s website. Any meaningful review typically requires cross-functional input from marketing, legal, and IT teams to ensure that website and AI tracking tools are implemented in a way that both complies with clear privacy law requirements and, in the case of vague CIPA boundaries, adequately mitigates litigation risk. At the same time, businesses often (and understandably) want to avoid “overcompliance,” or kneejerk reactions to CIPA or other pixel litigation in a way that overcorrects and harms the business’s ability to reach its customers and potential customers with valuable marketing efforts. Visibility into what data is collected, how it is used, and with whom it is shared is the important first step in determining the appropriate middle ground for accomplishing that goal.

As part of this comprehensive digital marketing review, businesses often take a variety of steps, which often includes some combination of the following:

• Taking stock of tracking and analytics tools. Many businesses are conducting internal assessments to understand the range of cookies, pixels, analytics scripts, chat functions, and AI features operating across their digital properties. These reviews often focus on identifying where data originates, where it flows, and whether third parties have access.
• Comparing policy to practice. Companies continue to review their public-facing privacy disclosures and cookie notices to confirm they accurately reflect operational practices. A clear alignment between what is disclosed and what occurs in practice can reduce the risk of misrepresentation claims and support defensibility if challenged.
• Examining consent and user interface design. Organizations are exploring ways to enhance transparency around data collection and user choice. This may include clarifying banner language, implementing timing or scope limitations on tracking, or maintaining records of consent where applicable.
• Revisiting vendor relationships. Vendor contracts are receiving closer scrutiny to confirm roles and restrictions are clearly defined—particularly when vendors deploy tracking or analytics tools on a company’s behalf. Key focus areas include data-use limitations, obligations to delete or return data, and cooperation in the event of an inquiry or claim.
• Integrating AI tools into existing governance programs. As AI-driven features become more common, many companies are expanding their privacy review processes to include questions about how those tools capture, process, and transmit user inputs. In some cases, this involves cross-functional review among privacy, IT, and marketing teams.
• Monitoring developments and adjusting accordingly. Given the pace of legislative and judicial activity—including the potential enactment of Senate Bill 690 or similar legislation—organizations are maintaining visibility into new rulings and guidance to inform future risk assessments.

CIPA and pixel litigation remain a moving target, but the underlying message is clear: transparency, documentation, and disciplined vendor management are no longer optional. Businesses that treat digital tracking as a regulated data-processing activity rather than a purely marketing function will be best positioned to demonstrate good-faith compliance and minimize litigation risk.

Ogletree Deakins will continue to monitor developments and will provide updates on the California, Class Action, Cybersecurity and Privacy, Multistate Compliance, and Technology blogs as additional information becomes available.

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