“This call may be monitored or recorded for quality assurance purposes” – ever wonder where this came from? That script is a practical result of California’s Invasion of Privacy Act (CIPA)—a Cold War–era wiretap law now being repurposed to challenge routine website tools like cookies, pixels, chat features, and session replay, as unlawful “eavesdropping” or recording. Section 631, which prohibits intentionally intercepting or eavesdropping on communications without consent,[1] is the primary hook for CIPA-based challenges and potential liability. It is frequently invoked to argue that common website tools improperly capture users’ interactions or communications with a website without the user’s consent.
Why Businesses Should Know About CIPA
CIPA can turn routine website functionality into expensive litigation. CIPA provides a private right of action and authorizes statutory damages of the greater of $5,000 per violation or three times actual damages, as well as injunctive relief.[2] Importantly, plaintiffs need not allege or prove actual damages, making CIPA an attractive vehicle for class action litigation.[3]
Although CIPA predates the internet by decades, courts are increasingly being asked to apply its broad language to modern website technologies, creating legal uncertainty and heightened litigation risk for businesses with websites. This article will discuss common CIPA risks with websites, how to manage that exposure, and practical, low-friction steps businesses can take to reduce CIPA risk.
Where CIPA Risk Commonly Appears
Recent CIPA litigation rarely involves classic wiretapping. Instead, it targets routine website tools that allegedly “intercept” or “record” user communications without consent during website visits.
The risk most often shows up in technologies that capture how users engage with websites – especially tracking pixels, analytics cookies (data sent to third-party vendors for marketing, performance measurement, or fraud prevention), session replay software (recording of mouse movements, keystrokes, or page navigation that help businesses understand user experience), and embedded chat features (logged communications with customer support).
The common theory is that these technologies operate as undisclosed third-party listeners or recorders, capturing communications between the user and website operator without the user’s consent. As a result, businesses may face CIPA claims not because of intentional misconduct, but because of routine decisions about website design, analytics, or customer engagement tools.
Managing CIPA Exposure
CIPA claims are often plead as strict statutory violations, with the outcome frequently hinging on whether users provided legally sufficient consent.
Consent
Consent is the strongest defense to CIPA claims. Courts have recognized that consent need not always be explicit, but it must be informed.[4] In the website context, businesses often rely on privacy disclosures, cookie banners, or other on-screen notices to show that users received clear notice about data collection practices and chose to proceed. Courts are more likely to find consent where disclosures are clear, conspicuous, and delivered before interacting with the website.[5]
However, not all consent mechanisms are treated equally. Courts scrutinize how disclosures are presented, including their visibility, clarity, and proximity to the allegedly intercepted activity. Clickwrap agreements – a form of express consent – are a best practice in this area (discussed in more detail below). Implied consent buried in dense privacy policies or displayed after data collection has already begun is less persuasive than just-in-time notices, banner disclosures, or affirmative user consent acknowledging data practices.
Third-Party Vendor Agreements
Because CIPA can support aiding-and-abetting theories, claims often involve both the website operators and vendors providing the tools. Vendor contracts, technical configuration, and data flows frequently play a central role in the analysis of whether a violation exists.[6] Businesses should evaluate not only their own site setup, but also the tools and practices of any integrated third-party vendors.
Arbitration Clauses
Where a business has enforceable arbitration agreements tied to website use or account creation, that changes the litigation exposure. However, arbitration enforceability turns on formation such that clear, conspicuous notice and consent of terms are all present.[7]
Practical Steps To Reduce CIPA Risk
Businesses worried about CIPA exposure generally have a menu of risk-mitigation options, and they operate on a sliding scale: the more proactively businesses limit tracking and tighten consent, the lower the risk of getting sued—and the better the defense if a lawsuit is filed.
Here are three practical tools to prioritize (often in combination), without unnecessarily detracting from the user experience:
- Strengthen Cookies and Privacy Policies. A generic banner stating “we use cookies to enhance your experience” is usually too vague to carry much defensive weight. Think of disclosures the way businesses treat call-recording notices: they work best when they are early, unambiguous, and understandable. Focus less on technical jargon (“pixels,” “beacons,” etc.) and more on what a layperson cares about—what information businesses collect, whether they share it with third parties, and for what purposes. Make it easy to find and easy to read. Clear labeling matters, too: “Privacy Policy,” “Cookies Policy,” and “Terms of Use” are better than a catch‑all like “Legal Notices.”
- Update Terms of Use to improve enforceability and control litigation risk. Terms that are merely available in the website footer are harder to enforce because there’s often no meaningful notice or manifestation of consent. Modernize the Terms to reflect current litigation trends and consider including procedural protections like arbitration, forum selection, choice of law, and pre‑dispute notice requirements—then make sure users are actually put on notice and expressly consent through a clickwrap agreement.
- Implement a Clickwrap Agreement so assent is immediate.
This is where site architecture matters. If a cookie banner appears immediately and includes links to the Cookies Policy, Privacy Policy and Terms of Use—paired with a click to “Accept”—the business has moved from passive disclosure to affirmative consent. A business can tune the level of use friction: from a banner users can dismiss, to a stricter “I Accept” box the user must accept before accessing the website.
Ultimately, the goal is business-aligned risk reduction: keep only the tracking that serves a real business purpose, then design disclosures and consent flows that meaningfully match the exposure.
Conclusion
Ultimately, reducing CIPA risk is a mix of legal strategy and smart website design. Because CIPA exposure is highly fact-specific, consult experienced data privacy counsel to assess the business’s website privacy risks. –Melody McAnally, Sarah Rawls and Noor Jaber
[1] Cal. Penal Code § 631(a).
[2] Cal. Penal Code § 637.2(a).
[3] Cal. Penal Code § 637.2(c).
[4] Lakes v. Ubisoft, Inc., 777 F. Supp. 3d 1047, 1055 (N.D. Cal. 2025).
[5] Lee v. Ticketmaster L.L.C., 817 F. App’x 393, 395 (9th Cir. 2020).
[6] See Rodriguez v. Ford Motor Co., 722 F. Supp. 3d 1104, 1123 (S.D. Cal. 2024).
[7] Compare Morrison v. Yippee Ent., Inc., No. 24-7235, 2025 WL 2389424, at *1 (9th Cir. Aug. 18, 2025), with Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 (9th Cir. 2014).
