Governor Newsom Signs SB 690, Closing One Door on CIPA Claims While Others Remain Open

The much-discussed California Invasion of Privacy Act (CIPA) amendment, SB 690, has been signed by Governor Gavin Newsom and will take effect January 1, 2027, relieving some pressure businesses face from the flood of litigation, arbitration, and demand letters relating to the use of analytics or marketing technology on their websites.

Under the new law, private plaintiffs can no longer assert claims under the CIPA pen register and trap and trace provisions, Cal. Penal Code § 638.51. Instead, only the California Attorney General may bring those claims. Additionally, the law is retroactive and applies to any claim filed on or after January 1, 2025. Plaintiffs used this provision to allege that the use of common website analytics tools constituted a pen register or trap and trace device on their computer and, thus, they were entitled to $5,000 statutory damages per violation.

However, the law will not prevent all CIPA or cookie-based claims going forward. Plaintiffs often paired pen register claims with CIPA wiretapping claims under Cal. Penal Code § 631, which may still be brought by private plaintiffs, and plaintiffs are also pivoting to allege claims under other state and federal laws, including the Electronic Communications Privacy Act, the California Computer Data Access and Fraud Act, consumer protection laws, and others.

Going forward, companies should remain vigilant about cookie and pixel use on their websites and continue to mitigate risks from those technologies by conducting regular audits and reviews of the specific technology they use. Companies should also confirm that any cookies, pixels, or other third-party analytics tools on their websites are used and operating as described in their privacy disclosures.

The Coblentz Data Privacy and Cybersecurity team is experienced in handling CIPA claims based on these analytics technologies and advising clients on the best practices for their use to navigate the changing legal landscape. Please reach out to Scott Hall or Phillip Wiese for further information or assistance.