CIPA pen register claims now drive a new wave of website tracking lawsuits. A recent federal ruling in Camplisson v Adidas gave plaintiffs more room to pursue claims tied to pixels and similar tracking tools. Site owners who rely on analytics or ad pixels should treat this shift as a compliance trigger, not background noise.
Read Recycling Meta Pixel Plaintiffs: The Rise of Professional Testers and the New Wave of CIPA Shakedowns for context on why these tracking cases keep multiplying.
Quick take
- Plaintiffs frame certain tracking tools as pen registers or trap and trace devices under California law
- Courts scrutinize consent flows, especially when pixels fire before a user takes an affirmative step
- Businesses reduce exposure through tracking audits, tighter consent design, and cleaner documentation
What changed in Camplisson v Adidas
Camplisson matters because the court let key claims survive early dismissal arguments. That single move changes leverage. Plaintiffs gain momentum. Defendants face higher defense costs earlier. Demand letters become easier to write and harder to ignore.
The ruling also signals a broader trend. Plaintiffs keep repackaging pixel tracking into older surveillance statutes. Courts do not agree on every element, but a case survives when the complaint pleads a plausible technical story and points to weak consent.
For a business owner, the takeaway stays practical. Even if you plan to fight, you still need to tighten the system. Courts focus on two issues in these cases:
- What the site captured and transmitted through pixels or similar tools
- Whether the user gave valid consent before collection began
If your pixels fire on page load and your consent banner functions like a passive notice, you should expect more risk than a site that blocks tracking until a user clicks an accept button.
What is CIPA section 638.51
CIPA includes a set of rules California uses to regulate interception and tracking. Section 638.51 targets the use of a pen register or a trap and trace device without required consent.
In plain English, plaintiffs use this section to argue a website should not capture and transmit certain routing and signaling style data from a visitor without permission. They try to fit modern web tracking into concepts built for telecommunications.
Two definitions drive most disputes.
A pen register generally captures numbers or similar routing information tied to outgoing communications. A trap and trace device generally captures comparable routing information tied to incoming communications. These tools focus on signaling information, not message content.
Plaintiffs argue that tracking pixels function like those tools when they record identifiers and send them to third parties. Defendants argue pixels measure traffic and events, not dialing style information, and the statute does not map cleanly onto modern web architecture. Courts split, which fuels filings.
For a newbie, the key point stays simple. A CIPA pen register claim does not require an allegation of someone reading your messages. The claim can focus on what your site collected and transmitted during a visit and whether the visitor consented before collection began.
Do tracking pixels qualify as a pen register under CIPA
CIPA pen register claims target a narrow idea. Plaintiffs argue a tracking pixel acts like a pen register or trap and trace device when it records and transmits dialing, routing, addressing, or signaling information tied to a visitor’s electronic communications.
In these cases, plaintiffs usually plead two points.
First, the site installed a tracking tool on the visitor’s browser without valid consent.
Second, the tool captured identifiers and sent them to a third party, such as an ad platform or analytics vendor.
Plaintiffs also lean on device fingerprinting. Fingerprinting links separate data points, such as browser attributes, unique identifiers, and other signals, to recognize a device across visits. Plaintiffs argue that the process creates a tracking record that fits within CIPA’s broad definition of a device or process used to record signaling information.
Why courts split on what counts as dialing, routing, addressing, and signaling information
Courts split because the statute came from a telephone surveillance era, while pixels operate in a web ecosystem.
Some courts read CIPA’s definition broadly and allow plaintiffs to proceed when they allege pixels recorded identifiers and addressing information, including information embedded in an IP address. Under this view, the case can move forward at the motion to dismiss stage if the complaint plausibly alleges the tracking tool recorded and transmitted this category of information.
Other courts read the definition more narrowly. They treat many pixel outputs as substantive event data, not routing or addressing signals. Under this view, the pixel does not fit the statutory concept of a pen register, especially when the alleged data looks like behavioral analytics rather than communication signaling.
For site owners, the practical risk remains simple. The same tracking setup can produce different results depending on the court and the facts pleaded, especially around what data the tool captured and whether the user gave consent before the tool fired.
What facts in Camplisson drove the ruling
Camplisson turned on what plaintiffs alleged Adidas deployed and what the court accepted as plausible at the pleading stage.
The tracking tools at issue
Plaintiffs alleged Adidas used two tracking pixels on its website: TikTok Pixel and Microsoft Bing. Plaintiffs alleged Adidas installed the trackers on visitors’ browsers without their consent.
The types of data plaintiffs claimed the pixels collected
Plaintiffs alleged the trackers collected IP addresses, browser information, unique identifiers, and other personally identifiable information and addressing information. Plaintiffs also alleged the trackers used device fingerprinting, meaning the tools associated information collected through the trackers with other personally identifiable information to facilitate device-level activity tracking.
Why the court rejected Adidas arguments at this stage
Adidas argued the trackers did not qualify as a pen register under the statute for two main reasons.
First, Adidas argued the trackers captured only specific outgoing information rather than all outgoing communications from a device.
Second, Adidas argued the fingerprinting-related information was substantive, not dialing, routing, addressing, or signaling information.
The court rejected both arguments at the pleading stage. The court treated CIPA’s definition as intentionally broad and declined to require allegations that a tool captured all outgoing communications. The court also held the alleged recording of personally identifiable information, including information contained in an IP address, plausibly alleged use of a pen register for purposes of surviving dismissal at this early phase.
Adidas also argued consent barred the claims. The court disagreed based on how Adidas presented its online terms and privacy disclosures. The court focused on two alleged defects. Visitors had to scroll to a footer to find the terms and privacy policy, and the site did not use a pop up or similar mechanism that required an affirmative action to show assent.
Can a website privacy policy create valid consent for CIPA claims
A privacy policy can support consent, but courts scrutinize how a site presents it. A buried link and continued browsing language create risk, especially when tracking pixels fire on page load. For a practical baseline, compare your disclosures to Privacy Policy: Consideration for Every Website Owner and confirm your public policy page matches your real tracking setup.
Why passive disclosure in a footer creates risk
Footer links create two practical problems.
First, many users never see them. A business cannot rely on consent a user never encounters.
Second, footer links usually function like browsewrap. Browsewrap rests on the idea that continued use equals agreement. Courts apply uneven standards to browsewrap, and plaintiffs attack it as nonconsensual tracking.
CIPA pen register claims amplify this problem because plaintiffs frame the harm as immediate. The pixel fires, data transmits, and the user never took an affirmative step.
Why clickwrap consent carries more weight
Clickwrap consent forces an affirmative action. The user clicks accept or agrees before the site activates nonessential tracking. That structure gives a business a clearer argument on notice and assent.
Clickwrap also creates better records. A consent system can log the event, timestamp, and preference selection. Those records matter when a demand letter hits and you need to prove your flow.
A business should still match the consent language to the real tracking behavior. Consent text should name categories of tracking and third party recipients in plain terms.
What to test before deploying consent tools
Test the system like a reviewer and like a plaintiff.
- Confirm pixels do not fire before consent for users who decline. Validate in a browser network log, tag manager preview, and mobile.
- Confirm the banner appears for California traffic. Confirm geo rules do not fail on VPN use.
- Confirm the consent text matches the tools you run. List vendors and categories in a way a nonlawyer can understand.
- Confirm your site stores consent logs in a retrievable format. Keep a retention policy.
- Confirm revoke and preference change works. Make the link easy to find.
- Confirm the same rules apply across subdomains, landing pages, and checkout flows. Many sites patch one page and miss the rest.
Why defendants cite Headspace, Royal Caribbean, Talkspace, and CuriosityStream
Defendants cite these cases because several courts dismissed similar CIPA section 638.51 theories tied to website tracking. These decisions give defense teams language to argue two core points.
The defendant friendly line of cases and what they said
First, defendants argue pixels do not fit the statutory concept of a pen register or trap and trace device. These courts treated the statute as a narrow tool aimed at telephone style signaling and routing information, not modern web analytics events.
Second, defendants argue consent defeats the claim when the site discloses tracking in terms and privacy materials. Some decisions accepted online disclosures as sufficient at an early stage, depending on how the site presented notice and assent.
These rulings do not eliminate risk. They show a path to dismissal in some courts with some fact patterns.
Why Camplisson rejected that approach
Camplisson did not adopt the defense framing at the pleading stage. The court treated the statutory definition as broad enough to cover the alleged tracking conduct and allowed the case to proceed based on the complaint’s factual allegations.
The court also rejected the consent argument as presented. The complaint framed Adidas disclosures as passive and hard to find. The court focused on the absence of a mechanism requiring affirmative assent, such as a pop-up or similar consent action.
Practical takeaway for risk planning when courts disagree
A split in case law creates two business realities.
First, plaintiffs file more cases. Uncertainty lowers their barrier to entry.
Second, your consent design and tracking governance matter more than your legal argument. A strong clickwrap consent flow and a true pre-consent block reduce exposure across jurisdictions. A footer link strategy increases exposure even in courts that sometimes dismiss.
Treat tracking governance like a control system. Inventory tools, control firing rules, document consent, and keep records ready for review.
Compliance checklist for website owners using pixels and analytics
Treat CIPA pen register claims as a tracking governance problem. A clean program reduces exposure and shortens response time when a demand letter lands. If you need a legal plus technical review of your pixel stack, see Data Privacy Lawyer for the audit approach counsel uses in tracking disputes.
Inventory all tracking tools and where they fire
Build a tracking map you can hand to counsel in one page.
- List every tool: analytics, ads, chat, fraud, session replay, heatmaps, A B testing, affiliates
- List where each tool loads: tag manager, hard coded script, plugin, server side
- List what triggers firing: page load, scroll, click, form submit, checkout, login
- List who receives data: vendor name, sub processors if known, destination domains
- List what data leaves the site: IP address, device identifiers, event names, page URLs, form fields, order data
Block non essential tools until affirmative consent records exist
If your business relies on consent, enforce it technically.
- Define essential versus non essential tools
- Stop non essential pixels from firing until the user takes an affirmative action
- Verify the block works across desktop and mobile
- Verify the block works on landing pages, checkout, and logged in pages
- Log consent events with a timestamp, location signal, and preference state
Confirm disclosures match reality across pages and subdomains
Mismatch drives problems. Plaintiffs look for gaps.
- Confirm your privacy policy lists the categories of tracking you run and the third parties involved
- Confirm your cookie banner language matches your actual tools
- Confirm your site runs the same consent rules across subdomains and campaign pages
- Confirm your opt out path works and stays easy to find
- Confirm your consent tool updates when marketing adds a new pixel
Review vendor contracts for data use limits and indemnity alignment
Contract controls reduce business exposure, even when they do not eliminate legal exposure.
- Confirm the contract limits vendor use of data to providing the service
- Confirm the vendor cannot reuse data for its own advertising unless you explicitly agree
- Confirm security obligations and breach notice timing
- Confirm subprocessors disclosure and change notice terms
- Confirm indemnity and limitation of liability align with the risk level
- Confirm you can turn off the tool quickly without breaking the site
Keep audit logs you can produce fast in a demand letter cycle
A demand letter cycle moves on documentation.
- Save a quarterly tracking inventory export
- Save screenshots of the consent banner and settings panel
- Save tag manager change logs and publish history
- Save sample network logs showing blocked firing before consent
- Save consent logs retention policy and retrieval steps
- Save vendor list with contact points and contract dates
What to do if you receive a CIPA demand letter
A CIPA demand letter aims to force a quick settlement. Your first move should protect evidence and protect your narrative. Start with How to Defend Against Meta Pixel Threat Letters because the preservation and response discipline transfers directly to CIPA pen register claims.
What to preserve immediately
Preserve records before anyone starts making changes.
- The demand letter and all attachments
- The exact pages and funnels referenced
- Current versions of the privacy policy, cookie banner, and consent settings
- Tag manager containers, versions, triggers, and variables
- A list of pixels and scripts firing on the relevant pages
- Consent logs and configuration settings
- Vendor contracts for the named tools
- Internal tickets or emails about adding or modifying tracking tools
What not to say in early responses
Early responses become exhibits later. If the letter frames the issue as wiretapping, review A Guide to Wiretap Allegations Linked to Meta Pixel before you send a substantive reply.
Avoid statements like:
- Admissions you violated the law
- Claims you collected no data without verifying with logs
- Accusations of extortion or bad faith without a factual basis
- Technical explanations you cannot support with documentation
- Promises you will pay or settle before you evaluate exposure
Keep communications short. Confirm receipt. State you are reviewing. Ask for time if needed.
When to remediate versus when to litigate posture
Remediation and defense can run in parallel. The decision depends on what your audit shows.
Remediate when:
- Non essential pixels fire before affirmative consent
- Disclosures do not match real tracking behavior
- A vendor tool collects more than your business intended
- Consent logs are missing or incomplete
Litigation posture becomes more realistic when:
- You have a strong consent flow and clean logs
- The claim rests on disputed legal theories and weak facts
- The letter demands a number untethered to any real harm
- The sender refuses to provide basic details about the alleged tracking
How counsel typically structures the response workflow
Counsel usually runs the response like an incident review.
- Intake and fact capture, including the threatened claims and the alleged conduct
- Technical audit with screenshots, network logs, and tag manager review
- Consent analysis, including banner design, timing, and records
- Exposure assessment, including venue, complaint trends, and settlement ranges
- Response strategy, including whether to push back, negotiate, or prepare for litigation
- Remediation plan, including changes that preserve defenses and limit repeat exposure
If you want to reduce exposure from CIPA pen register claims without shutting down your marketing stack, start with a tracking inventory and a consent firing audit. Capture what loads, when it loads, and where data goes. Then lock a consent flow that blocks non-essential tools until a user takes an affirmative step. If you already received a demand letter, get counsel involved before you respond on the merits, since one sloppy email can create a new problem you cannot undo.
FAQ
What is a CIPA pen register claim?
A CIPA pen register claim alleges a business used a pen register or trap and trace device without required consent. Plaintiffs argue that certain website tracking tools record and transmit routing or signaling style information tied to a user’s communications.
Does the TikTok Pixel create CIPA exposure?
TikTok Pixel can create CIPA exposure allegations when it fires before valid consent and transmits identifiers or similar data to TikTok. Risk depends on your consent flow, your configuration, and what data your site sends.
Does an IP address count as pen register information?
Some plaintiffs argue IP addresses or information contained in an IP address qualify as addressing information. Courts do not treat this issue uniformly. Treat IP address transmission to third parties as a risk factor, especially when it occurs before affirmative consent.
Does a cookie banner count as consent?
A cookie banner can support consent if it provides clear notice and requires an affirmative action before non-essential tools fire. A banner that allows tracking to start on page load creates more risk.
Can a privacy policy alone create consent?
A privacy policy alone can fail when users do not see it or never take an affirmative step to agree. Courts scrutinize passive notice models, especially for claims tied to immediate tracking.
Can I reduce risk without turning off analytics?
Yes. Many businesses reduce risk by limiting tools to essential functions until affirmative consent, reducing data shared with third parties, tightening configurations, and documenting consent logs. This approach preserves measurement while improving compliance posture.
The post CIPA Pen Register Claims After Camplisson v Adidas first appeared on Traverse Legal.