There has been a rise in legal claims in which plaintiffs argue that website advertising cookies and pixels should be considered pen registers and/or trap and trace devices, and therefore prohibited under California Penal Code § 638.50-55 (the “California Pen/Trap Law”). However, to date, there is no judicial precedent that supports this position, and these claims appear to be based on a misunderstanding of a recent federal court decision.
We have published a comprehensive analysis describing why the California Pen/Trap Law does not prohibit the use of website advertising cookies and pixels, which focuses on the plain text, structure, and legislative history of the law; previous court orders authorizing the use of pen registers/trap and trace devices; the purpose, scope, and intent of California consumer privacy laws; and the “user consent” provisions in the California Pen/Trap Law. The California Pen/Trap Law is a part of the California Invasion of Privacy Act (CIPA).