Pixel Wiretapping Decisions on the Rise, Say Lawyers
Twenty-five privacy decisions from October to December show a significant uptick in the number of pixel-based court rulings on wiretapping issued nationwide, according to Husch Blackwell’s Dustin Taylor and Owen Davis in their monthly data privacy litigation report Monday. Ten of the decisions cited in the report were about pixel-wiretapping decisions: four on chat-wiretapping decisions, four on secure reliable transport-wiretapping, five on pen registry/tap and trace decisions and two on Video Privacy Protection Act (VPPA) decisions.
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Plaintiffs argue that "the mere use of a pixel (e.g., the Facebook/Meta pixel or the Google Analytics cookies) violates wiretapping laws,” the lawyers said. “This theory has long been promoted by a limited number of plaintiffs’ firms that preferred arbitration to court, but we are now seeing this theory gain more traction by other plaintiff firms and appear in traditional court pleadings as well.”
In the 10 decisions the Husch Blackwell lawyers listed in their report, the courts had to consider whether the pixels transmitted the “content” of communications, whether the court had jurisdiction over the defendants and whether the plaintiffs had consented to any recording of their communications, Taylor and Davis said.
California has a law regulating "pen register" and "tap and trace," which the five cases in the report allegedly violated, they said. Courts were in disagreement over whether IP addresses fell under the definition of “pen registry” and if there was even a protected privacy interest in a plaintiff’s IP address. The two VPPA cases cited are at odds with each other as well, with one broadening the definition of “goods and services” and “subscriber” as outlined in the law, while the other “provides defendants a persuasive argument for defeating class certification of VPPA claims premised on the Facebook/Meta Pixel,” Taylor and Davis said.