Lessons From the Trenches: Winning Strategies for Defeating Pen Register Lawsuits

As Congress considers the proposed American Privacy Rights Act, creative plaintiffs’ lawyers are filling the void by filing hundreds of lawsuits each year alleging novel state law theories to challenge the collection of information on the internet. The most active bench of privacy advocates has seized on the California Invasion of Privacy Act (CIPA) to file a barrage of privacy litigation based on a decades-old law. The latest filings have focused on the argument that commonplace tracking software, like cookies or pixels, constitutes “pen register” and “trap and trace” devices that may not be used without consent or a court order. In this guest article, Blank Rome partner Rachel Schaller lays out plaintiffs’ pen register litigation playbook and provides strategies to defeat CIPA claims. See our two-part series on website-tracking lawsuits: “A Guide to New Video Privacy Decisions Starring PBS and People.com” (Mar. 29, 2023), and “Takeaways From New Dismissals of Wiretap Claims” (Apr. 5, 2023).

To read the full article

Continue reading your article with a CSLR subscription.