Website Tracking Litigation Risks Remain Elevated, Mid-Year Update Shows
Companies using website tracking tools including cookies, pixels and session replay software face elevated litigation risk as unsettled standing rules and new pre-consent tracking theories expand the scope of privacy claims against them.
Recent court rulings have not resolved nationwide website tracking litigation risk, with ongoing splits in Article III standing standards across federal circuits, including a forthcoming Ninth Circuit interlocutory appeal on whether unauthorized disclosure of IP addresses and similar identifiers constitutes concrete injury. Plaintiffs are shifting tactics to focus on pre-consent data collection, gaps between corporate privacy disclosures and actual practices, and non-functional opt-out mechanisms, even as defendants secure some dismissals. Companies should audit their tracking technologies, consent tools and privacy disclosures to align stated practices with actual data collection, and test opt-in/opt-out functionality to reduce exposure to state and federal privacy claims.