Email Tracking CIPA Wiretapping Victory! – Advertising, Marketing & Branding

Although the California Invasion of Privacy Act
(“CIPA”) lawsuit train shows no signs of slowing down, a
California federal judge recently derailed a CIPA email tracking
lawsuit when it dismissed claims mirroring those asserted in other CIPA online
tracking lawsuits. Below, we discuss the decision and its
implications for future email tracking CIPA claims.

Email Tracking CIPA Wiretapping Claims

In Ramos v. The GAP, Inc., Plaintiff
alleged, on behalf of himself and a putative class, that The GAP,
Inc. (“The Gap”) contracted with a third-party to embed
invisible pixels in its marketing emails to track the
message interactions of consumers. Specifically, Plaintiff alleged
that the pixels in The Gap’s marketing emails tracked: (1)
times at which consumers opened emails; (2) the exact images and
words consumers clicked on; (3) consumers’ email addresses; (4)
email open rates; and (5) content click rates. Aggregating all this
data through the use of email tracking, the Complaint alleged,
allowed the third-party to create highly detailed personal profiles
of consumers. Because of the alleged email tracking, Plaintiff
asserted, among other things, that The Gap illegally wiretapped his
communications in violation of CIPA.

In its carefully reasoned decision, the Court dismissed
Plaintiff’s wiretapping claims, finding that Plaintiff did not
plausibly plead that The Gap’s email tracking was actionable
under CIPA’s anti-wiretapping provisions. First, the Court
found that The Gap was not directly liable under CIPA because The
Gap cannot, by definition, wiretap its own communications, and
email open rates are not contents of communications under CIPA.
Second, the Court found that the first clause of CIPA’s
wiretapping provisions did not apply to internet
communications.

Evaluating whether the data The Gap collected through email
tracking were “contents” of communications under CIPA,
the Court was not persuaded that users’ clicks on URLs
contained within The Gap’s emails were contents of
communications. Equally unavailing was Plaintiff’s argument
that the URLs themselves revealed contents of communications such
that the third-party could read the actual emails. In support of
this assertion, Plaintiff argued that the URLs, when broken down
“into the scheme, domain name, path, and query
parameters,” revealed the contents of communications. The
Court held that “none of these elements allegedly
‘read’ the contents of the email such that they intercept
the actual substance, purport, or meaning of The Gap’s
emails.” As the Court noted, “[w]hile a robust policy
debate could be had about whether it is a net positive or negative
that so much online activity can be tracked, the Court’s task
is solely to determine whether doing so is a violation of
CIPA.” Accordingly, the Court dismissed Plaintiff’s CIPA
email tracking wiretapping claims.

Email Tracking Lawsuits Will Continue

This decision comes on the heels of the Ninth Circuit’s decision earlier this month in which one of
the judges on the panel stated that CIPA did not apply to internet
communications. When coupled with the decision discussed above,
California courts now appear to be viewing CIPA claims, in the
context of internet communications, with increased skepticism.
Nevertheless, given the lack of uniformity amongst California
courts, the plaintiffs’ bar will continue filing CIPA email
tracking lawsuits unless and until California courts establish a
bright-line rule for internet communications. As such, companies
should carefully review their websites to ensure that they are
providing adequate notice of the use of third-party tracking tools.
In addition, online businesses should regularly review and update
their privacy policies to reflect changes to their data collection,
use and sharing practices.

Consulting with experienced counsel to ensure compliance with
applicable consumer data privacy regulations can help companies
avoid significant liability. The attorneys at Klein Moynihan Turco (“KMT”)
regularly assist companies with federal and state marketing and
consumer privacy law compliance. In addition, the KMT litigation
team has successfully defended countless businesses against federal
and state privacy law claims nationwide.

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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.