The consumer alert issued by Texas Attorney General Ken Paxton on September 17 does more than highlight a different interpretation of the California Invasion of Privacy Act (CIPA). It shows how CIPA claims are moving beyond California’s borders. In response, the plaintiffs too are working dynamically. As courts dismiss or narrow certain CIPA claims, plaintiffs are adapting their strategies and pursuing alternative wiretapping allegations. Common technologies used on public-facing websites, including analytics tools, cookies, search bars, and tracking pixels, continue to become the basis for demand letters alleging privacy violations.

And the scrutiny may not stop at websites. As Odia Kagan, Chair of Data Privacy Compliance and International Privacy at Fox Rothschild LLP recently observed on LinkedIn, trackers embedded in mobile applications could become the next wave of wiretapping litigation. For business leaders, this evolving landscape of potentially exaggerated claims over everyday technologies can easily become a source of anxiety.

If you ask me, much of this comes down to confidence in the privacy controls. Businesses need a reliable way to understand what is happening across their digital properties and demonstrate compliance when their practices are questioned. With legal theories evolving, claims reaching businesses outside California, and mobile applications potentially becoming the next litigation target, that need has become even more urgent.

Potentially Relevant Evidence

The Texas consumer alert exhibits how serial plaintiffs and fraudulent demands target anxieties about privacy compliance. Some common trigger points for these anxieties include:

• Analytics Tools: Businesses rely on analytics technologies to understand traffic, visitor behavior, conversions, and website performance. But because these tools can collect information such as IP addresses, device identifiers, URLs, and user interactions and send it to an analytics provider, plaintiffs have attempted to characterize them as unlawful interception or tracking under CIPA.
• Cookies: Cookies are routinely used to maintain sessions, remember preferences, measure website performance, and support advertising. They can be targeted to collect information about a visitor, device, or browsing behavior and transmit it to third parties.
• Website Search Bars: A visitor typing a product, service, symptom, financial question, or other query into a website search bar may reveal considerably more than a simple page view. If the search term or related information is simultaneously transmitted to a third party, plaintiffs may argue that the contents of a visitor’s communication were intercepted while in transit.
• Tracking Pixels: Pixels embedded in webpages can record interactions such as page views, button clicks, URLs visited, or other browsing activity and transmit that information to third parties for advertising, measurement, or analytics. CIPA claims have alleged that when these transmissions occur as a visitor interacts with a website, the third party is effectively intercepting an electronic communication without appropriate consent.
• Chatbots and Live-Chat Tools: Website chat features may collect conversation content and, depending on their implementation, involve third-party providers that process or retain transcripts. Plaintiffs have alleged that these arrangements allow an outside party to intercept conversations in real time without the visitor’s knowledge or consent.

Acting Contemporaneously

Businesses should not have to operate under the constant threat of regulatory action or drive-by lawsuits simply because their websites use common technologies. Here’s how they can establish confident privacy controls:

• Maintain a Website Technology Inventory: Businesses first need visibility into what is actually operating on their public-facing websites. This includes cookies, pixels, analytics scripts, chat tools, and other third-party code. The inventory should identify who provides each technology, why it’s used, what information it collects, and where that information is transmitted.
• Continuous Audits for New and Updated Technologies: A one-time website audit provides only a snapshot. Marketing teams introduce new campaigns, vendors update scripts, developers change functionality, and third parties modify their own technologies. Continuous website monitoring can identify when new trackers appear, existing technologies change behavior, or previously approved tools begin collecting or transmitting different information.
• Understand What Data Is Actually Being Transmitted: Businesses should understand what happens when a visitor loads a page, enters a search query, interacts with a form, opens a chat window, or clicks a button. Knowing what data is collected, which third parties receive it, and when it is transmitted gives privacy teams the context they need.
• Validate Consent Before Technologies Fire: A consent banner has limited value if the technologies behind it do not respect the visitor’s choice. Businesses should verify that technologies requiring consent are appropriately categorized and prevented from firing until the necessary consent has been obtained.
• Evaluate Third-Party Technologies Before Deployment: Adding third-party code to a website can create data flows that extend beyond the business’s direct control. Privacy teams should assess technologies before deployment to understand the provider, purpose, data collected, recipients, retention practices, and other relevant privacy considerations.
• Maintain an Audit Trail: Businesses should retain records of website scans, technologies detected, consent configurations, assessments, approvals, remediation actions, policy changes, and other relevant compliance activity. An auditable history can help the organization investigate an allegation against evidence of what was actually happening on its website at the relevant time.

Truyo Compliance Advisor and Truyo Privacy help companies establish confident privacy UX and control to ensure that anxieties about privacy litigation don’t threaten them.

In fact, we take this confidence a notch up by offering our customers the Truyo Warranty Certification that can act as their first line of defense with a cover of up to $1 million upon compliant implementation.

Demand for Resolution

The expansion of CIPA claims beyond California is just another reminder for businesses to keep up with their privacy controls. When ordinary website technologies can become the basis for demand letters, businesses need more than a consent banner and a privacy policy. Instead of scrambling whenever a legal pushback threatens them, businesses can assess the allegation against an established record of their actual website practices. Privacy compliance should give organizations the confidence to distinguish a legitimate issue that requires remediation from a questionable claim that deserves to be challenged.