Unfavorable Ninth Circuit Pixel Tracking Decision

Readers of this blog are aware of the barrage of California Invasion of Privacy ("CIPA") claims brought against online companies. Recently, an unfavorable decision from the Ninth Circuit Court of Appeals ("Ninth Circuit") reversed the lower court's dismissal of CIPA wiretapping claims. Below, we discuss the decision and its implications for future pixel tracking claims.

Pixel Tracking Software Wiretapping Claims

In Mikulsky v. Bloomingdale's LLC and Bloomingdales.com, LLC, Plaintiff alleged that Defendants violated CIPA by using third-party tracking software to illegally wiretap her communications while visiting Defendants' website. Specifically, Plaintiff alleged that Defendants utilized, without her consent, third-party pixel tracking and "session replay" software code to collect information, such as: (i) mouse movements; (ii) clicks; (iii) keystrokes; (iv) URLs of web pages visited; and (v) other electronic communications in real-time. According to the