Trap and Trace Lawsuits: The New Wave of Website Privacy Litigation

What Are Trap and Trace Lawsuits?

A new category of privacy litigation is moving quickly through California courts, and it is catching business owners off guard. Plaintiffs’ attorneys are using the California Invasion of Privacy Act (CIPA), a statute originally enacted in 1967 to address wiretapping and telephone surveillance, to challenge modern website technologies such as cookies, pixels, chat widgets, session replay tools, analytics scripts, and advertising tags.

In plain terms: if your website uses tools that monitor visitor behavior, collect device/browser information, transmit event data to third-party vendors, or support targeted advertising or marketing analytics, you may be exposed. Courts have allowed these claims to proceed even when the data collected is anonymized or used only for standard marketing analytics.

Why Should You Care?

The volume of litigation is significant and accelerating. Over the past two years, hundreds of California businesses, from small regional companies to national brands, have been named in CIPA trap and trace complaints. The pattern resembles the earlier wave of ADA website accessibility lawsuits: a low barrier to file, high cost to defend, and settlement pressure that often arises before the merits are tested.

What makes these cases particularly disruptive is that the tools triggering liability are often invisible to business owners. A website developer may have installed a plugin. A marketing vendor may have added a tag. A platform may have enabled analytics by default. But plaintiffs may still name the business that operates the website.

Key facts to understand:

• CIPA allows plaintiffs to recover $5,000 per violation, and each website visit by a California resident can potentially be counted as a separate violation
• The statute does not require the plaintiff to prove actual harm, only that the interception occurred without consent
• There is no cap on the number of class members in a class action filing
• While the law remains unsettled, California courts have shown a willingness to interpret the statute broadly

Bottom line: A website using common analytics, advertising, or customer engagement tools without clear disclosures and consent controls may create avoidable litigation risk.

How to Reduce Your Exposure

The good news is that proactive steps can substantially reduce your risk. Here is where to start:

Audit your website’s technology stack.  Work with your web developer or an IT consultant to identify every third-party script running on your site. Session replay tools (Hotjar, FullStory, Microsoft Clarity), live chat platforms, advertising pixels, and marketing automation scripts are the most common sources of liability.

Implement a consent management platform (CMP).  A properly configured cookie consent banner that gives California visitors the ability to opt out of tracking before it begins is currently the strongest procedural defense available. The banner must load before any tracking scripts fire, and it must provide a meaningful choice, not just an “accept all” button.

Update your privacy policy.  Your policy should clearly disclose what data is collected, what third-party tools are in use, and how visitors can exercise their rights under CCPA and CIPA. Vague or boilerplate policies are frequently cited in complaints as evidence of willful noncompliance.

Review vendor agreements.  Your contracts with marketing platforms, website vendors, analytics providers, and e-commerce plugins should include appropriate data processing terms. The agreements should define the vendor’s role, limit use of data to authorized business purposes, address data security, and allocate responsibility if the vendor collects or transmits data beyond the agreed scope.

Train your team.  Marketing staff and IT personnel who make decisions about website tools should understand the basics of California privacy law. A $50/month plugin added without legal review can create significant exposure.

What Should I Do if I Receive a CIPA Demand Letter?

If you receive a demand letter or are named in a complaint, take it seriously from day one.

• Do not respond to demand letters without consulting counsel. Anything you say can be used against you, and an uninformed response can close off settlement options or create admissions.
• Preserve the website as it existed at the time of the alleged violation if possible, including screenshots, source code, tag-manager exports, and HAR files.
• Have your attorney conduct a technical review of your website as it existed at the time of the alleged violation. Screenshots and configuration exports should be captured and preserved.
• Review your insurance coverage. Cyber, technology, media, and commercial general liability policies may provide some coverage, but prompt notice is important.
• Consider prompt remediation. Updating disclosures, improving consent mechanisms, and removing unnecessary tools may diminish your litigation exposure.

How Hoge Fenton Can Help

Hoge Fenton’s litigation and business law attorneys have experience advising California businesses on emerging privacy compliance requirements and defending against wave litigation. We work with trusted technology consultants who can conduct a website audit alongside legal review, giving you a complete picture of your exposure. For more information, contact Dan Ballesteros.