Key Takeaways
- At least four courts have now held that retailers using email for marketing are not considered "communication service providers" and therefore are not subject to TUCSRA.1
- At least five courts have now held that information collected through email tracking pixels does not qualify as "communication service records" protected under TUCSRA.2
- This recent ruling adds to the weight of authority interpreting TUCSRA to not apply to marketing emails with tracking pixels. But all these rulings are from trial courts only; no appellate authority is on the books yet.
In an important decision for email marketers, the U.S. District Court for the District of Arizona has dismissed a lawsuit against Pacific Sunwear of California (PacSun) concerning the use of email tracking pixels. This ruling is one of a handful of recent decisions holding that Arizona's Telephone, Utility, and Communication Service Records Act (TUCSRA) does not apply to email marketers, potentially solidifying a trend.
That said, in a mere 18 months, plaintiffs have filed at least 20 cases under TUCSRA—not only in Arizona, but also spanning from Washington to New York. It remains to be seen whether this wave of lawsuits will continue following this latest ruling against the plaintiff's bar.
Case Background
Over the past few years, plaintiffs have filed numerous lawsuits based on companies' use of marketing pixels, which are small pieces of software code that, in some cases, can track individuals across website properties. In Arizona, this litigation has focused on email pixels which, when embedded in marketing emails, can supply marketers with information about engagement with those emails. These Arizona-related cases have raised claims primarily under TUCSRA.
Enacted in 2007, TUCSRA prohibits "[1] [k]nowingly procuring, attempting to procure, soliciting or conspiring with another to procure [2] a public utility record, a telephone record or communication service record [3] of any resident of this state [4] without the authorization of the customer to whom the record pertains or by fraud, deceptive or false means." This prohibition applies, at least explicitly, to any "person." And it authorizes damages not "less than one thousand dollars" per violation.
In this case, an Arizona resident sued PacSun, alleging that the company violated TUCSRA by embedding "hidden spy pixel trackers" within its marketing emails. These trackers purportedly captured information from email recipients without consent, including whether an email was opened, how many times it was opened, the recipient's IP address, and whether any links in the email were clicked.
The plaintiff sought to certify a class of "[a]ll persons within Arizona who have opened a marketing email containing a tracking pixel from Defendant within the relevant statute of limitations." This putative class supposedly included "thousands of members," each seeking no less than "$1,000 for each violation."
After an unsuccessful motion to dismiss on jurisdictional grounds, PacSun moved for judgment on the pleadings, arguing that TUCSRA did not apply to either PacSun or the information it purportedly collected.
The Court's Decision
On April 16, 2025, the district court granted PacSun's motion, issuing several key holdings on TUCSRA's scope.
First, the court held that a retailer (like PacSun) that "uses email as a method of marketing to potential customers" was not a "communication service provider" subject to TUCSRA. Though the statute applies broadly to any "person"—and does not explicitly mention "communication service providers"—the court held that the statute applies only to those who have access to "communication service records," which includes "communication service providers" and certain third parties. The court then disagreed that PacSun was a communication service provider because, "[u]nlike telephone companies or internet service providers," PacSun was "not engaged in providing a service that allows its users to send or receive electronic communications."
Second, the court held that the information allegedly collected through PacSun's email tracking pixels did not qualify as "communication service records" under TUCSRA. As the court explained, the statute refers to "records of a subscriber's access to communication services—not marketing metrics collected by retailers about email engagement."
Based on those holdings, the court entered judgment for PacSun.
Broader Implications
- Increased clarity on TUCSRA's scope. Although TUCSRA was enacted nearly two decades ago, only a handful of cases have interpreted its scope. None interpreted it in the civil context until 2024. Now, in less than one year, at least five courts have held that the statute does not apply to marketing emails with tracking pixels.
- Some uncertainty still remains. Despite several trial courts rejecting TUCSRA claims against email marketers, no appellate court has evaluated these claims yet. One case that went up on appeal recently settled and was dismissed in March 2025. Several more are currently up on appeal. Until an appellate court issues binding precedent on the issue, trial courts are free to disagree with prior rulings and hold that TUCSRA does apply to email tracking pixels.
- Other issues might support dismissal. Even with a handful of rulings on TUCSRA's scope, courts have diverged on their reasons when ruling in defendants' favor. As noted above, some courts have held that the defendants were not subject to TUCSRA or that TUCSRA does not apply to information collected through email marketing campaigns. Others have held that collecting information through email tracking pixels is not a sufficient injury in fact for purposes of standing. And in other cases, defendants have raised entirely different arguments related to jurisdictional issues, federal preemption, and other interpretations of the statute.
Conclusion
The Arizona federal court's recent ruling on TUCSRA might dissuade some plaintiffs from bringing claims under the statute. Because these rulings have been limited to trial courts only, however, plaintiffs may continue their wave of cases under this statute or potentially pivot to another legal basis that might prove more favorable to their claims.
To minimize the risks arising from marketing emails sent to Arizona residents—and especially the risks from those who are changing their privacy policies and disclosures—companies should first consult with legal counsel regarding those risks, including under TUCSRA. The legal landscape governing marketing emails is frequently shifting, and more rulings on TUCSRA are expected in the coming months.
Footnotes
1. Williams v. Pac. Sunwear of Cal. LLC, No. 24-cv-02015, 2025 WL 1135160, at *4 (D. Ariz. Apr. 16, 2025); Order Granting Motion to Dismiss at 6, Camp v. Sephora USA, Inc., No. 24-cv-07330 (N.D. Cal. Jan. 24, 2025), ECF No. 22; Carbajal v. Home Depot U.S.A., Inc., No. 24-cv-00730, 2024 WL 5118416, at *4 (D. Ariz. Dec. 16, 2024); Order at 2, D'Hedouville v. H&M Fashion USA, Inc., No. CV-20243386 (Ariz. Super. Ct. Oct. 11, 2024) (hereafter "D'Hedouville I"), appeal dismissed, No. 2 CA-CV 2024-0390 (Ariz. Ct. App. Mar. 26, 2025).
2. Williams, 2025 WL 1135160, at *4–5; Camp, Order at 7; Mills v. Saks.com LLC, No. 23-cv-10638, 2025 WL 34828, at *6 (S.D.N.Y. Jan. 6, 2025); Carbajal, 2024 WL 5118416, at *4; D'Hedouville I, Order at 2.
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