California’s Trap and Trace Law

California’s trap and trace law protects consumers against the unauthorized tracking of their activity online. For law enforcement, securing a court order to intercept communications is difficult because there are strict limitations on this type of activity. Yet, for companies with websites, it has become far too easy to acquire customer data in the same invasive manner without any authorization or consent. Moreover, once a company has acquired certain information about a user, the company might try to use that information to deliver targeted advertising. In some cases, the customer data might even be sold to a third party. A qualified consumer fraud lawyer can help individuals better understand the nature of the protections provided by California’s consumer privacy laws.

The installation of tracking and tracing software on a website may be a violation of the California Trap and Trace Law. To learn more, keep reading.

What Is a Trap & Trace Device?

The California Invasion of Privacy Act (CIPA) defines a trap and trace device as “a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing or signaling information reasonably likely to identify the source of a wire or electronic communication.”

Trap and trace devices differ from wiretaps because they do not capture the content of communications in real time. Instead, a trap and trace device enables the collection of very particular information from a website visitor: the dialing, routing, addressing, or signaling information (also known as DRAS).

How Do Companies Use Trap and Trace Technology to Collect Consumer Data?

Website tracking software may permit companies to gather identifying information about website visitors, such as their phone number and email address. Tracking devices can also be used to gather other personal information about website users, including device and browser information, geographic information, referral tracking, and URL tracking.

How can trap and trace technology be used to identify the source of an electronic communication? One way that a trap and trace device might work is to capture incoming electronic impulses that identify the dialing, routing, addressing, and signaling information generated by website visitors. For example, as detailed in a recent digital privacy class action complaint against United HealthCare, website users might be asked to provide personal information like their gender, birthday, zip code, and tobacco use history. This data could then be scanned and sent to a third party like TikTok for deanonymization. Significantly, website visitors are never informed that the company is sharing confidential user information with the third party.

Tracking Software Is Deployed Automatically and Without Consent

When a company utilizes technology to track the interactions of website visitors, the company must first obtain a court order to do so. In many cases, however, companies do not get a court order to use trap and trace technology on their websites. In fact, the tracking & tracing software is often installed on certain companies’ websites and then deployed automatically: the software may start gathering personal information about users the moment they land on the site. This means that a user’s web activity is tracked before the user even has an opportunity to consent by “accepting cookies” or “managing preferences” on the website.

There are significant privacy concerns raised by the use of trap and trace technology on websites. The truth is that the personal information revealed by internet communications can be far more revealing than the same type of information captured by phone dialing information. That’s because when a trap and trace device captures a person’s internet addressing data, it may also reveal other important aspects of their communications, including geolocation data, purchase history, and other personal information. Moreover, a record of which website URLs a person visited on a website could be used to precisely identify the content of communications on the site.

Companies Accused of Selling Confidential Customer Data to TikTok and Other Third Parties

Companies as diverse as United HealthCare, WebMD, Smashbox, and DraftKings have been sued in recent months for alleged violations of California’s Trap and Trace Law. Many of the companies that utilize and deploy computer software on their websites attempt to make money by selling ads, and this is easier to accomplish when they are able to identify users who can then be commoditized and sold to the highest bidder.

Multiple trap & trace class action lawsuits have been filed against businesses accused of working with social media company TikTok to “fingerprint” website visitors so that their personal information can be collected and shared. For example, one type of trap & trace software allegedly utilized by TikTok allows companies to collect extensive data about anonymous website visitors and then match it with existing data that the social media platform has already acquired and accumulated about hundreds of millions of Americans. The technology can reportedly reconstruct a user’s identity, which then gives companies the ability to use the data to run advertising campaigns targeting the user.

CIPA Section 638.51: California Trap & Trace Law

As more and more websites have begun using technology to track site visitors, the number of lawsuits challenging this kind of technology has risen. Some California class action plaintiffs have started to file consumer protection lawsuits based on the trap and trace device theory, with dozens of lawsuits being filed in California state and federal courts over the last year. That’s because § 638.51 of the California Invasion of Privacy Act (CIPA) limits the ways in which companies can gather information about website users.

The statute that addresses trap and trace devices is broadly worded so that it applies to any device meant to locate a person, including websites. This means that a lot of individuals may qualify to join a class action lawsuit against companies that use these types of devices to acquire personal information about website visitors.

Class Action Lawsuits

Sections 631(a) and 632.7 of the California Invasion of Privacy Act (CIPA) specifically prohibit companies from wiretapping or eavesdropping on conversations with customers, and courts have extended these protections to consumers who visit websites. With respect to trap and trace class actions brought under the CIPA, federal courts have held that the law also applies to Internet communications. As a result, a number of lawsuits are now being filed under Section 638.51 of the consumer privacy statute.

Statutory Penalties

Each trap and trace violation carries a statutory penalty of $2,500, which serves as a strong deterrent for companies that operate websites targeting consumers in California.

Pen Register Lawsuits in California

Another type of legal claim filed under California Penal Code § 638.51 is a consumer protection lawsuit alleging privacy violations based on the pen register theory. The law explicitly prohibits anyone from using a pen register without first getting a court order.

A pen register is a physical machine commonly used by law enforcement to trace signals from someone’s phone or computer. In the context of a website, pen registers can be utilized to identify a website user’s location, browsing history, and purchase history. Pen registers track the phone numbers dialed from a particular phone line; by contrast, trap & trace devices track the numbers of incoming calls to a phone line. Importantly, trap and trace devices can also be utilized to identify the content of online communications, such as website forms that are completed by site visitors.

Call the Los Angeles Consumer Protection Lawyers at Tauler Smith LLP

Did a website track your personal information without consent? If so, you may be eligible to file a trap & trace lawsuit to recover statutory damages. The Los Angeles consumer protection lawyers at Tauler Smith LLP have experience handling consumer class action complaints filed in both federal and state courtrooms. Call 310-590-3927 or email us now for a free consultation.