Prior articles have discussed the growing problem of consumer website “wiretap” lawsuits under state privacy laws like the California Invasion of Privacy Act (CIPA). Now, attorneys are extending similar tactics with email tracking pixel lawsuits, repurposing outdated statutes to sue companies that use technology capturing browsing data, including website session replay software, chatbots, and website traffic analysis tools.
Taking their cue from wiretap lawsuits, enterprising class action attorneys in Arizona are behind a recent surge of cases filed against companies engaged in email marketing campaigns alleging violations of A.R.S. § 44-1376 et seq., better known as the Arizona Telephone, Utility, and Communication Service Records Act (the “Telephone Records Act”), based on the use of embedded tracking pixels in commercial emails.
How the Arizona Telephone Records Act Fuels Email Tracking Pixel Lawsuits
Among other things, the Arizona’s Telephone Records Act prohibits a person from knowingly procuring, attempting to procure, soliciting or conspiring with another to procure any Arizona resident’s telephone record without the customer’s authorization or by fraudulent, deceptive or false means.
The law’s prohibition also covers “public utility records” and “communication service records,” and defines “communication service records” as “subscriber information, including name, billing or installation address, length of service, payment method, telephone number, electronic account identification and associated screen names, toll bills or access logs, records of the path of an electronic communication between the point of origin and the point of delivery and the nature of the communication service provided, such as caller identification, automatic number identification, voice mail, electronic mail, paging or other service features”
Arizona Telephone Records Act Litigation
The Arizona Telephone Records Act also includes a private right of action, which, like chum floating in the ocean, naturally attracted the attention of class action attorneys, who filed lawsuits alleging that the defendants violated the law through the common practice of embedding tracking pixels within commercial emails without first obtaining the recipients’ consent.
Characterized as “spy pixels” in the complaints, email tracking pixels gather various elements of data, including whether, when, where, and how often an email was opened, whether it was forwarded or printed, and the type of device used to open it.
Email tracking pixels have existed almost as long as email itself, and the data collected by email pixels is used by senders to optimize future email campaigns. However, in the lawsuits filed by Arizona class action attorneys, they argue that email tracking data constitutes a “communication service record” under the Arizona Telephone Records Act.
The hapless companies thus far targeted by these lawsuits have generally responded by filing motions to dismiss, arguing that the Arizona Telephone Records Act does not apply to email tracking and analytics technologies, but was rather enacted to prohibit the unauthorized sale and/or disclosure of telephone records by telecommunications carriers. Defendants have also argued that the plaintiffs lack Article III standing because they failed to allege how they were harmed by the action of the tracking pixel, and thereby suffered no injury in fact.
In addition, motions to dismiss have also been based on an argument that the information collected by email pixels does not constitute “communication service records” under the Arizona Telephone Records Act, relying upon the absence of case law interpreting the meaning of that term, and the fact that the Arizona legislature has taken no steps to amend the statute to include such technology within the statutory definition of “communication service record.”
The Future of Arizona Telephone Records Act Litigation
As of this date, no Arizona court has ruled on the various motions to dismiss challenging the complaints filed under the Arizona Telephone Records Act. However, all it takes is a single Arizona judge allowing the matter to proceed to trigger a new wave of similar lawsuit filings.
Even if these attempts fail completely and no further efforts are made to monetize the Arizona Telephone Records Act, nothing will ever dissuade consumer class action attorneys from attempting to convince courts to apply antiquated state consumer protection statutes to encompass modern technologies that didn’t even exist at the time they were drafted. As long as a statute includes a private right of action and/or an attorney’s fee provision, they’re all fair game.
In any case, companies engaged in email marketing campaigns that employ email tracking technologies should be aware of the risk of litigation like that filed Arizona Telephone Records Act and weigh the benefits afforded by email tracking pixels against that risk.
