To paraphrase Animal Farm, all pixels are not created equal, but some pixels are more privacy invasive than others.
Here are some recent points I made during a presentation to some of my firm’s litigators:
- Litigation on tracking pixels is spreading like wildfire. The claims are under various laws, causes of action and states.
- Many of the claims are trying to “teach old laws new tricks.” Plaintiffs are taking laws that were made for telecom operators and trying to superimpose them on very different technologies.
- A pixel is just a vehicle for data collection. It is a technology. Whether the facts of a case will be in your favor depends on how you are using that technology: What information are you collecting? What are you going to do with it? Are you sharing it with third parties? What are they going to do with it?
- If you are using a third party to do your email tracking, website design, chatbot design, etc., you need to understand what they are doing with the data. Just because they are a reputable provider doesn’t mean they won’t reserve the right to use the information collected for their own purposes. If they do that, you may be held liable.
- Even if a case gets dismissed because you were sued under a law that wasn’t good given the facts, that may not be the end of the story. If you are not properly collecting or using data,/not telling people what they need to know about it/not giving them an opt-in/opt-out/not doing due diligence on your vendors/not entering into the right agreements, you may be subject to other litigation or enforcement. You need to contend with U.S. state privacy laws, U.S. consumer protection laws, state UDAP laws and more.
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