Our readers are well aware of the proliferation of lawsuits alleging California Invasion of Privacy Act ("CIPA") violations against companies that use third-party tracking technology to collect consumer data on their websites. The latest iteration of these CIPA third-party tracking software lawsuits targets CIPA and TikTok.
Trap and Trace CIPA TikTok Claims
In Esparza v. Thinoptics, Inc., Plaintiff claims, on behalf of himself and a putative class of consumers, that Defendant violated CIPA by using TikTok "tracking pixels" on its consumer-facing website. These pixels, according to the Complaint, "link to data harvesting platforms that pick off usernames and passwords, credit card and banking information and details about users' personal health." Specifically, Plaintiff claims that the TikTok software captures consumer: (1) device and browser information; (2) geographic location data; and (3) referral and URL tracking. Plaintiff asserts that TikTok uses the collected information to match it with its own data that it has accumulated from millions of consumers. As such, Plaintiff asserts that the TikTok software violates CIPA because it amounts to an unlawful "trap and trace device."
Similarly, in Garcia v. Lavender Lingerie, LLC, Plaintiff commenced a putative class action proceeding alleging that Defendant used the same TikTok software to violate CIPA. The Complaint maintains that Defendant, without consumer consent, monetized consumers' personal information "by enabling TikTok to surveil their journey across the web, track their location and lifestyle habits, and bombard them with targeted advertising." As with Esparza, Plaintiff asserts that the TikTok software constitutes a "trap and trace device" in violation of CIPA.
Contact KMT If Your Company Uses Tracking Technology On Its Website
Because the statute allows for the recovery of: (1) $5,000 per violation; or (2) three times the amount of actual damages, if any; and (3) injunctive relief, these alleged violations, especially when they are brought as a class action, can be quite expensive. The CIPA TikTok claims asserted in the cases above mirror those alleged in a litany of other lawsuits against companies that use third-party tracking software. As support for these claims, the plaintiffs' bar continues to rely upon a California federal court case which denied Defendant's Motion to Dismiss similar CIPA claims. Since that case was decided, however, there have been a number of rulings in favor of companies that use third-party tracking software.
If your company uses third-party tracking software on its consumer-facing website, determining whether you comply with CIPA, and other state privacy laws, requires hiring experienced counsel. The attorneys at Klein Moynihan Turco ("KMT") have years of experience assisting companies with federal and state marketing and consumer privacy law compliance. Importantly, the KMT litigation team has successfully defended numerous businesses in CIPA lawsuits. If your company employs third-party tracking software or has been served with a CIPA lawsuit, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
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