Pen Registers vs. Trap and Trace Devices
Invasion of privacy has become a major concern for consumers who frequent websites and make purchases online. That’s because many companies are now using pen registers and trap devices, which may include website cookies, web beacons, script, software code, and other types of software to track user data. While both federal and California law provide strong protections for consumers in these situations, pen registers vs. trap and trace devices is still a distinction that needs to be understood before speaking to a consumer fraud lawyer. What exactly is the difference between a pen register and a trap & trace device? And what legal recourse do you have when a company uses one of these tracking tools to monitor your online activity?
To learn more about the differences between pen registers and trap & trace devices, keep reading this blog.
What Is a Pen Register?
Long before the invention of the internet, pen registers were being used by law enforcement as a crime-fighting tool. A pen register is a physical device that gives government actors the ability to track outgoing phone numbers that have been dialed from a telephone line. If the police suspect illegal activity, they may obtain a court order that allows them to secretly install a pen register on the phone line.
Importantly, courts have ruled that the laws regulating the use of pen registers also extend to online communications. The California Invasion of Privacy Act (CIPA) defines a pen register as “a device or process that records or decodes dialing, routing, addressing or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted.” The types of information commonly collected by pen registers includes phone numbers, email addresses, and internet data such as IP addresses. A pen register does not identify the contents of a communication, which is its main difference from a trap and trace device.
Pen Register Lawsuits in California
Law enforcement has historically used pen traps to record both outgoing and incoming telephone numbers after obtaining a phone-tapping warrant. After the passage of the Patriot Act in 2001, police were able to use the same warrants to monitor Internet communications. Eventually, California lawmakers responded to the increasingly broad government monitoring of American citizens by updating the definition of consumer communications in the California Invasion of Privacy Act (CIPA). This has now prompted many consumers to bring pen register lawsuits against companies that use software to identify website visitors and acquire their personal data.
When a company’s website utilizes certain tools to track interactions and communications with site visitors, it may be a violation of the CIPA. This is especially likely when a website visitor has a reasonable expectation of privacy. As a result, California courtrooms have seen a surge in class action lawsuits filed under a relatively new legal theory: pen register claims and trap and trace claims, both based on the CIPA.
Penalties for Pen Register Violations
When a company uses website session replay software or chatbot features without the consent of site visitors, it may be considered a violation of both federal and California digital privacy laws.
Federal Pen Register Law
Federal law originally addressed pen registers in the Electronic Communications Privacy Act. The statute was later addressed by the USA PATRIOT Act, which was passed in 2001 in response to the September 11 attacks.
California Pen Register Law
California law addresses pen registers in the California Invasion of Privacy Act (CIPA), which imposes statutory penalties of $2,500 for each pen register violation.
Wiretapping Claims vs. Pen Register Claims
California’s consumer privacy laws prohibit companies from recording, transcribing, or otherwise surveilling communications without permission. This is unlawful whether the surveillance involves phones or websites. In the context of websites, wiretapping may involve secretly recording chats that were supposed to remain confidential, or it may involve data acquisition from forms that were filled out by site visitors. The California Invasion of Privacy (CIPA) gives consumers the right to file civil suits when their online conversations have been illegally wiretapped.
Although CIPA wiretapping claims and CIPA pen register claims are similar, there are a few key differences. For instance, a plaintiff bringing a wiretapping claim must show that there was no consent for the monitoring and that their communications were actually captured by the website. By contrast, a plaintiff bringing a pen register claim merely needs to show that the pen register was utilized without either consent or a court order.
What Is the Difference Between Pen Registers and Trap & Trace Devices?
One of the reasons that legal statutes often refer to both pen registers and trap and trace devices in the same sections is that many internet monitoring programs can be utilized to record both incoming and outgoing calls.
Whether the customer information is acquired via pen registers or trap and trace devices, the end result is a serious invasion of customer privacy. The businesses that violate the California Trap and Trace Law are often seeking to acquire as much information as possible about website visitors so that the data can then be monetized and sold to third parties. That’s why these companies will go to such great lengths to obtain, collect, and organize large pools of data from website visitors without their knowledge or consent.
Talk to a California Consumer Protection Lawyer Today
Tauler Smith LLP is a Los Angeles law firm that represents consumers in both individual lawsuits and class actions across California. Our knowledgeable consumer protection lawyers know how to win pen register lawsuits and trap & trace lawsuits because we have experience with invasion of privacy cases. We will hold website operators accountable for using unauthorized tracking devices on their websites.
Call 310-590-3927 or send an email for a free consultation.
