In the Headlines
December 2, 2020

Facebook Wiretap Ruling Inspires Slew of Lawsuits Over Consumer Tracking

Cybersecurity Law Report

Privacy and Data Security Partner Mark Melodia was cited in a Cybersecurity Law Report article discussing the new burst of privacy class actions using old state and federal antiwiretap laws to target widespread website practices for tracking and profiling customers. The lawsuits allege that websites’ use of cookies, pixels and other tracking and analytics tools have enabled third parties to impermissibly intercept the plaintiffs' communications. The wiretap allegations are giving fresh momentum to privacy litigation against consumer profiling, paralleling the rising regulatory pressure on digital marketing practices and consumer data sharing. This article addresses how the litigation strategies are unfolding, the conflicting mix of court findings on key legal questions, the difficulty of applying vintage criminal laws to current web analytics and the role that wiretap allegations play in the overall landscape of consumer privacy litigation.

The surge of cases sharpens the need for courts to address whether the wiretap acts should be extended to what is common practice on both for-profit and non-profit websites, said Mr. Melodia. Defense lawyers are concerned that courts looking at similar technological facts have reached different conclusions, creating a patchwork of precedents and a split among federal circuit courts. Few defendants so far have obtained successful settlements or judgements. “It has been a mixed track record for both sides in the motion-to-dismiss stage, where most of these cases are at this point,” he noted.

READ: Facebook Wiretap Ruling Inspires Slew of Lawsuits Over Consumer Tracking (Subscription Required)

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