MEMBERSHIP LEGAL ALERT
NEW SHAKEDOWN LAWSUITS HITTING CALIFORNIA BUSINESSES

Trial Lawyers Suing Employers Over Their Company Websites and Alleged Violation of CA Privacy Laws

SACRAMENTO — CAL SMACNA is writing to alert you to a significant and ongoing wave of civil litigation targeting businesses and website operators under the California Invasion of Privacy Act (CIPA), specifically Penal Code sections 638.50(b) and 638.51(a).

Vivek Shah, a serial plaintiff litigant, has been sending pre-litigation demand letters and subsequently filing lawsuits against businesses across the country alleging violations of CIPA. These demands are related to the presence of website search bars or forms, often included on company websites, that allegedly transmit user-entered content to third-party analytics or advertising services like Google, Facebook/Meta, and others—without the user’s prior consent.

There are actionable steps to mitigate risk – SEE BELOW

Important Disclaimer— This alert is provided for informational purposes only and does not constitute legal advice. The legal landscape is evolving rapidly, and outcomes depend on specific facts. Members should consult their own qualified legal counsel to assess compliance obligations and risks under California law (and any other applicable jurisdictions). We will continue to monitor this issue closely and provide updates as new developments arise. Protecting our members from unnecessary legal exposure remains a top priority. Thank you for your attention to this important matter.

The Issue — Plaintiffs allege that embedding or causing the deployment of third-party tracking tools—such as Meta Pixels, TikTok Pixels, Google Analytics configurations, session-replay scripts, chat widgets, or certain cookies—on websites accessible to California residents constitutes the installation or use of a “pen register.” Under CIPA:

A “pen register” is defined as a device or process that records or decodes dialing, routing, addressing, or signaling information (e.g., IP addresses) transmitted from a user’s device, but not the contents of communications.
Section 638.51(a) generally prohibits installing or using such a device or process without first obtaining a court order, unless an exception applies (most relevantly, obtaining the consent of the user).

These claims seek statutory damages of $5,000 per violation (or three times actual damages, whichever is greater) under CIPA’s private right of action, plus potential punitive damages and attorneys’ fees. Lawsuits are often filed as putative class actions.

Current Legal Landscape —

Litigation in this area has surged since 2024 and continues into 2026. Courts remain divided:

Many federal district courts in California have allowed these claims to proceed past motions to dismiss, finding that the broad statutory language can plausibly cover website tracking technologies.
California state courts have more frequently adopted narrower interpretations and dismissed or limited claims.

Appellate decisions expected in 2026 may provide greater clarity. In the meantime, businesses continue to receive pre-suit demand letters and face litigation risk, particularly if their websites use client-side tracking tools that activate without clear prior consent from visitors. This risk applies to any member whose website is accessible to California residents (even if the business is located outside California).

Actionable Steps to Mitigate Risk —

We strongly recommend members talk to their counsel and consider taking the following practical steps promptly. These measures align with defenses highlighted in recent court decisions and legal analyses (particularly the consent exception):

Conduct a Comprehensive Website Audit
Inventory all third-party scripts, pixels, cookies, analytics tools, session-replay technologies, chat features, and any other tracking mechanisms on your site(s). Identify what data each tool collects and where it is sent. Engage your IT, marketing, and legal teams (or outside experts) for this review.
Implement Robust, Affirmative Consent Mechanisms
Deploy a Consent Management Platform (CMP) or cookie banner that:
- Requires users to take an affirmative action (e.g., click “Accept” or “Allow”) before non-essential tracking technologies load or fire.
- Blocks or delays trackers until consent is obtained (“gatekeeper” functionality).
- Clearly discloses the types of technologies used, the data collected/shared, and the purposes (e.g., analytics, advertising).
  Consent should be prior, informed, and as granular as feasible.
Update and Prominently Display Your Privacy Policy
Revise your privacy policy to explicitly describe all tracking technologies in use, the categories of information collected, third parties involved, and how data is used/shared. Provide a clear, conspicuous link to the policy on every page and in the consent banner. Keep records of policy versions and effective dates.
Document and Maintain Consent Records
Retain auditable records showing when and how consent was obtained for each visitor/session. This documentation can be critical in defending claims.
Review and Update Contracts with Third-Party Vendors
Ensure agreements with pixel providers, analytics platforms, and other vendors include appropriate compliance warranties, indemnification provisions, and data-processing terms. Consider whether server-side or first-party alternatives can reduce third-party data sharing.
Consider Technical Mitigations
Explore options such as:
- Server-side tracking where feasible.
- Data minimization and anonymization techniques.
- Masking or disabling sensitive data capture in session-replay tools.
- Limiting the scope or number of tracking technologies deployed.
Train Relevant Teams and Establish Governance
Educate marketing, digital, and web development teams on these risks. Implement internal approval processes for adding new tracking tools (treat them like production code changes).
Monitor Developments and Consult Counsel
Stay informed about new court rulings and any legislative updates to CIPA. Have your privacy counsel review your specific website configuration and consent practices for tailored advice.

WHAT IS CAL SMACNA DOING TO PROTECT ITS MEMBERS?

CAL SMACNA is pursuing two tracks to help its membership:

Actively alerting and educating our members to these new claims; and
Lobbying in Sacramento for the passage of SB 690 (Caballero) to mitigate these claims by exempting any “commercial business purpose” as defined by the California Consumer Privacy Act (CCPA) from civil and criminal liability pursuant to the California Invasion of Privacy Act (CIPA) which prohibits wiretapping, eavesdropping on, or recording confidential communications, intercepting and recording cellular communications, or using a pen register or trap and trace device.

We are educating policymakers in Sacramento. Please let us know if a claim like this has been made against your company. We can be reached at (916) 363-7460.