What Pennsylvania Website Owners Need to Know About CIPA Liability

Recently, there has been an uptick in website privacy lawsuits across the country, mostly arising under a California state law. If you are a website owner or developer in Pennsylvania, there are steps that you can (and should) take to reduce the risk of potential liability under CIPA.

CIPA Background

Recently, a California privacy law called the California Invasion of Privacy Act (CIPA) has gained national attention due to a wave of litigation arising under the 1967 state statute, which was originally enacted to protect individuals from unauthorized wiretapping and other privacy concerns. CIPA was amended in 2015 to include a prohibition on certain data-capturing devices, such as the use of a ‘pen register’ or other trap-and-trace devices, on a website without party consent or a court order. California residents can bring claims against a website owner based anywhere in the US for failing to include disclosures and receive consent for use of these digital devices.  Some lawsuits are being brought as class actions, while many others are being initiated by individual plaintiffs (the person bringing the case). One plaintiff in particular, California resident Vivek Shah, has filed claims pro se (meaning he is representing himself), and has sent thousands of demand letters to small business owners across the country.

In general, the lawsuits allege that modern website technologies, including tracking pixels and analytical tools like cookies that collect IP addresses, routing information, and/or device identifiers, are the digital equivalent of pen registers. As such, plaintiffs argue that businesses and website owners who utilize these third-party trackers to capture information that a user plugs into search bars or web forms, as well as information in the form of metadata, without receiving their explicit consent violate CIPA. 

The penalties can be steep, as CIPA’s statutory damages provision includes a penalty of $5,000 per violation — meaning that a plaintiff doesn’t need to prove actual financial harm from the CIPA violation to seek the damages, just that the violation occurred. However, if a plaintiff can prove actual financial harm, they can seek three times that amount in damages if it amounts to more than the $5,000 per-violation statutory penalty. Plaintiffs may argue that each visit to a website, or even each piece of data that is collected there, constitutes a separate violation. A plaintiff can seek attorney fees under CIPA as well.

In the Courts & In the Law

Some courts, on both the state and federal level, have expressed skepticism over this specific use of CIPA. One California court held that CIPA provisions were intended to apply to telephone communications rather than website technologies and software. (Blaker v. NetScout Sys., Inc., Case No. 25STCV31283 (L.A Super. Ct., May 27, 2026)). And recently, Vivek Shah was declared a vexatious litigant in one federal district court, limiting his ability to bring cases in that jurisdiction (but not at the state level or in other districts.)

Courts are still split as to CIPA’s applicability, and no higher court ruling has outright held whether website tracking and analytics tools violate CIPA —yet!  There are two pending cases before California appeals courts that should address this question. Moreover, California has introduced legislation to limit these types of claims to the California Attorney General instead of private citizens. 

No matter what happens, website owners and developers should still absolutely take steps to mitigate risk and avoid liability in the meantime.

What Should Business/Website Owners Do?

There is no specific language that will specifically limit or prevent a CIPA claim, but it really boils down to whether a website user consents to transferring certain trackable data. Best practices to prove and support user consent include (1) requiring explicit, specific consent to tools besides essential cookies; (2) confirming that consent occurs before the tools are actually activated; and (3) specifically describing the types of analytics and tools used and what they are used for, in an accessible, public privacy policy or somewhere else on the website.

Oftentimes, a strong and simple defense to a CIPA claim is to have an opt-in cookies consent banner that forces the website user to either accept, reject, or manage their cookie preferences. It’s important to note that the consent banner should require the user to actually make a selection, rather than allow them to x-out or navigate away from it. Moreover, website owners should confirm that if a user does not make a selection, the tracking and analytics tools are actually, in fact, deactivated. If the user doesn’t explicitly consent, the tools should not work.

Website owners can also include a more detailed list of tools with their descriptions in a privacy policy that is easily accessible to users, or post that information elsewhere on the website where users can easily find it (you can read more about privacy policies here). A good way to go about this step is to take inventory of all the third-party plug-ins, vendors and tools that are actually and currently being used on the site. If a website owner is the one managing their own website, they should have a fairly accurate understanding of the vendors and tools in use. Or if the owner utilizes a separate company or consultant to manage their site, they should communicate with them to receive an accurate and updated accounting of that information. 

Finally, keeping an eye on updates in privacy and digital laws is important, as these are always changing. No two websites, their purpose, audience, or content is alike, and compliance requirements vary by location, use, industry, and more. If you have questions about your risk for a privacy claim, would like a new or updated privacy policy for your website, or have general legal questions surrounding your website, reach out! 

DISCLAIMER: This blog post is meant for informational purposes only and does not constitute specific legal advice or create an attorney-client relationship. Readers should discuss their specific situation and considerations with an attorney.