What Are Pen Registers? | Tauler Smith LLP

A number of recent lawsuits have been filed based on something known as “the pen register theory.” But what are pen registers? One of the surveillance tools commonly used by law enforcement to spy on suspects is the pen register, which allows police to capture phone numbers that were dialed on outgoing calls. Increasingly, these devices are being used by businesses to reveal the content of communications on websites, which poses a very real privacy concern for consumers. Worse yet, many companies with websites are now collaborating with TikTok to identify people who may wish to remain anonymous – exposing confidential information about consumers to third parties without authorization. The good news is that California law protects consumers against invasion of privacy by companies utilizing pen registers and other tracking devices.

To learn more about pen registers and how you can stop companies from using them to unlawfully collect your data, keep reading.

What Is the Definition of a Pen Register?

Both federal and California statutes have defined pen registers in the context of surveillance, especially as it relates to surveillance by law enforcement or other government actors. Recently, the term has been defined in other contexts, including when the devices are used by companies that operate websites targeting consumers.

Generally speaking, a pen register is a device that records any phone numbers that have been dialed from a particular telephone line. In legal cases involving allegations of privacy violations by companies using pen registers, courts have defined a pen register broadly so that it includes programs and software that monitors internet communications.

Differences Between Pen Registers and Trap & Trace Devices

Pen registers differ from trap and trace devices in a significant way: pen registers show the phone numbers that have been dialed by a particular phone, while trap and trace devices show the phone numbers that have called a particular phone. Another way to think of the difference is that pen registers capture data from outgoing communications, and trap and trace devices capture data from incoming communications that identify the originating phone number or geolocation.

Whether the privacy violation involves a pen register or a trap and trace device, the basis for a lawsuit typically remains the same: if a website owner fails to obtain affirmative consent from a site visitor prior to the use of tracking software, it may be a serious violation of California’s consumer fraud and consumer privacy laws such as the California Invasion of Privacy Act (CIPA) and the California Consumer Privacy Act (CCPA).

Invasion of Privacy Concerns Raised by Use of Pen Registers and Trap & Trace Devices

The use of pen registers to monitor customers raises concerns about invasion of privacy. Similarly, data sharing via tracking and tracing software can impose significant dangers on web users. For example, one of the major fears with automatic tracking software is that user activity will be tracked across every page on the website, regardless of how private the information might be. This means that highly personal information could be compromised, particularly if a website user is filling out forms on the site.

Pen Register Lawsuits & Trap and Trace Lawsuits in California

The California Invasion of Privacy Act (CIPA) can serve as the basis for a consumer protection lawsuit, particularly when the plaintiff is alleging a digital privacy violation. For a while, the main CIPA claim filed in California courtrooms involved wiretapping lawsuits against companies that violated the privacy rights of website visitors. That’s because this type of unauthorized data collection violated Section 631(a) of the CIPA, which explicitly prohibits third parties from illegal wiretapping or eavesdropping on communications. Recently, however, a lot of CIPA class action lawsuits are being based on either the pen register theory or the trap and trace theory.

When website owners gather data from site visitors without first getting consent, it may constitute a violation of California’s strict privacy laws – specifically Section 638.51 of the California Invasion of Privacy Act (CIPA). This has led to a new wave of CIPA litigation in California courtrooms that involves both pen register claims and trap and trace claims. Many companies that do business in California are now facing class action lawsuits because of the way they use certain analytic tools on their websites. The statutory penalties for violations of the CIPA have proven costly for companies that don’t follow the law – and they have given potential plaintiffs ample reason to talk to a consumer protection attorney about their legal options.

Contact the Los Angeles Consumer Protection Attorneys at Tauler Smith LLP

Too many companies in California and elsewhere in the United States are invading the privacy of customers who visit their websites, which in many instances involves data breaches and even the unauthorized sharing of personal data. The California consumer protection lawyers at Tauler Smith LLP represent plaintiffs in class actions and individual lawsuits. We have experience with trap & trace lawsuits and pen register lawsuits. Call us or email us to schedule a free consultation.