Our readers are aware that when they surf the internet, their data may be shared via the use of third-party pixel tracking technologies (such as those employed by Meta, Google, and Microsoft, to name a few). As our readers also know, this use of third-party pixel tracking software on consumer-facing websites has led to the rise in consumer privacy litigation. In turn, courts are now struggling to interpret whether antiquated federal and state privacy laws apply to consumers’ modern electronic communications. A putative class action against an event ticket seller recently was dismissed by a California federal judge, and below, we discuss: (1) the claims asserted in the lawsuit; (2) the decision and the judge’s related reasoning therefor; and (3) its implications for e-commerce companies.
Pixel Tracking Decision Discussed
In Torres v. Seatgeek, Inc., Plaintiff alleged, on behalf of himself and a putative class of consumers, that Defendant, without his consent, used third-party pixel tracking software to collect and share personally identifying information including, among other things, his: (1) IP address; (2) approximate location; (3) browsing activity; and (4) device-related metadata. Specifically, Plaintiff alleged that Defendant utilized the TikTok Pixel and the Meta Pixel on its website and Plaintiff’s browser to: (i) track his activities; and (ii) monetize certain user data by allowing third-party advertisers to provide targeted advertising. As a result, Plaintiff filed a complaint in which he asserted claims under the California Computer Data Access and Fraud Act (“CDAFA”), the California Invasion of Privacy Act (“CIPA”), and invasion of privacy. In response, Defendant moved to dismiss contending, among other things, that Plaintiff lacked Article III standing because he had alleged only the routine collection of non-sensitive browsing information.
In granting dismissal, the Court determined that the browsing information that was purportedly captured did not “suggest interception of embarrassing or sensitive data or a highly offensive disclosure and thus is not harm that establishes Article III standing.” Citing to a recent Ninth Circuit case (Popa v. Microsoft Corp.), the Court found that IP addresses, device make/model/OS, browser type, and cookie identifiers were record information in which there was no reasonable expectation of privacy. In its decision, however, the Court noted that Plaintiff’s allegations were more robust than those asserted in Popa, which involved interactions with a single website. Unlike Popa, Plaintiff alleged that Defendant caused his identifying information to be transmitted to three separate parties, each with preexisting profiles for him which those parties could aggregate and use to link the data with his profiles. Notwithstanding these facts, the Court dismissed Plaintiff’s claims ruling that “the tracking of metadata generated by a visit to a public ticket-resale site . . . does not resemble any traditional common-law privacy tort.”
Pixel Tracking Lawsuits Will Continue
Although this is a favorable decision, the Court provided Plaintiff with an opportunity to revive his claims by amending the Complaint. Until courts reach a consensus on the applicability of federal and state privacy laws to the latest electronic technologies, pixel tracking lawsuits will continue to be filed.
Against that backdrop, e-commerce companies that utilize third-party pixel tracking code/software will remain vulnerable to pixel tracking claims. As such, companies should be extremely cautious when employing third-party pixel tracking technologies on their websites.
Hiring experienced counsel, such as the attorneys at Klein Moynihan Turco (“KMT”), can alleviate the potential exposure companies face for using third-party pixel tracking. KMT’s attorneys have years of experience assisting companies with federal and state marketing and privacy law compliance. Importantly, the KMT litigation team has successfully defended numerous businesses in pixel tracking proceedings. If your company employs third-party pixel tracking software or has been served with a pixel tracking demand/lawsuit, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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Photo by Terrillo Walls on Unsplash
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