Decoding the Code: How Simple, Rigorously Accurate Advocacy May Have Broken the CIPA Litigation Impasse

For nearly three years, corporate legal departments and privacy defense counsel have been bedeviled by an obscure four-letter acronym: CIPA. Originally enacted in 1967 to shield citizens from physical wiretaps and illicit telephone recording, the California Invasion of Privacy Act (CIPA) became the weapon of choice for an aggressive plaintiff’s bar. By aggressively mapping the outdated, criminal text of the statute onto modern internet technologies, opportunistic litigants unleashed a tidal wave of threatened and actual class-action lawsuits.

 

Everyday website tools ranging from chat widgets and session replay software to marketing pixels and Software Development Kits (SDKs) were suddenly recast in legal complaints as insidious "surveillance mechanisms." Courts, routinely overwhelmed by dense technical jargon and possibly frightened by plaintiffs' characterizations of corporate espionage, allowed these claims to survive past the pleading stage, sometimes forcing settlements. There have been a number of cases dismissed on specific facts and allegations. However, the possibility of pleading such claims loomed. 

 

That paradigm shifted decisively with Blaker v. NetScout Systems, Inc, where the Los Angeles Superior Court dismissed a CIPA class action with prejudice.  Much will be written about the prevailing legal arguments, and it should be; however, in the context of privacy litigation, we should examine how these cases require uncomplicated, factual narratives that a judge can confidently adopt.

The lawsuit against NetScout Systems followed the standard script of the modern CIPA playbook. Plaintiffs alleged that NetScout’s deployment of a third-party SDK (specifically belonging to X Corp.) on its website violated California Penal Code § 638.51, which regulates the unauthorized use of "pen registers" and "trap and trace" devices.

 

Historically, pen registers were physical, hardware-based mechanisms used by law enforcement to record outgoing dialed numbers from a specific telephone line. Plaintiffs argued that because an SDK captures internet protocol (IP) addresses, device fingerprints and routing instructions from a user’s browser, the software functionally operates as a digital pen register.

 

Rather than allowing the litigation to devolve into a semantic debate over data architecture, the defense successfully framed the argument around the conceptual difference between CIPA’s protection of telephonic communications and the routine, commercial data collection that powers the modern internet.

 

The court accepted this construction, ruling that the statute inherently does not reach standard website tracking software. Because the defect was structural and statutory, the judge dismissed the case with prejudice, denying the plaintiffs the opportunity to amend their complaint and effectively cut off an expensive, multi-year litigation.

To appreciate the value of the Blaker decision, we must look at the wreckage of the litigations that preceded it. In previous cases, such as Greenley v. Kochava and the sprawling waves of Jornaya software litigation, defendants failed to simplify the core technology. They fell into the "expert's trap," attempting to defeat plaintiffs by engaging in hyper-technical semantic debates that ultimately confused the judiciary.

In Greenley, the defendant (a data broker) faced an identical pen register claim regarding its SDK. The defense chose to fight the battle on a highly literal, technical front. They focused intensely on the physical definition of a pen register, arguing that software code could not possibly meet the definition because it wasn't a physical hardware piece hooked up to a copper telephone wire. In so doing, they failed to keep the court's attention on the gap between that statute and the actual function of the internet. Because the defense failed to contextualize what an SDK actually does in an ordinary commercial environment, the judge noted how the internet can replicate certain telephone functions through software processes. Because the court kept its reasoning on telephone processes, and not a website, the motion was lost.

A similar misalignment occurred in the litigation surrounding Jornaya, a widely used consumer-consent and lead-verification platform. Plaintiffs targeted websites using Jornaya, alleging that the software's real-time recording of keystrokes and IP routing data acted as an illegal trap-and-trace mechanism.

 

In response, defense strategies frequently became mired in dense technical analysis regarding data packet routing, data transmission timestamps, and the exact mechanics of whether data was intercepted "in transit" or recorded "simultaneously."

 

To a judge without a computer science degree, this debate made the technology sound incredibly complex, opaque and potentially dangerous. Because the defense teams failed to ground the technology in its simple, structural reality, specifically that the internet cannot function without transmitting IP addresses, the courts hesitated and the CIPA cases persisted as a risk to any company that had a website.

NetScout avoided these pitfalls. First, they stripped away the ominous surveillance framing pushed by the plaintiffs and rebranded the SDK as basic, ubiquitous web infrastructure. They demonstrated that an SDK is merely a digital building block, used by millions of legitimate commercial websites to ensure routine web functionality, user analytics and basic site performance.

 

Second, they provided the court with the correct legal home for the technology: if a company's routine commercial data practices require regulation, that authority belongs strictly under modern consumer privacy frameworks, specifically the California Consumer Privacy Act (CCPA), rather than an antiquated, 1960s-era criminal wiretapping statute.

 

By giving the judge a clean, uncomplicated category to place the technology into, NetScout made it safe and logical for the court to dismiss the case.

The ultimate lesson of Blaker v. NetScout is that in technology litigation, simplicity is the highest form of sophistication. It is remarkably easy to write a dense, 50-page brief filled with technical jargon, coding acronyms and complex network diagrams. It is infinitely harder to distill that complex technical reality into a single, elegant and rigorously accurate concept that a non-technical judge can instantly grasp and write into an opinion. 

 

When a court is confused by technology, it defaults to caution, and in the context of a motion to dismiss, caution means letting the case proceed.

 

To win decisively, defense attorneys must possess the technical mastery required to understand the code, paired with the communication mastery required to look past it. Delivering an uncomplicated description that remains rigorously accurate is an exceptionally difficult balance to strike, but as Blaker definitively demonstrates, it is absolutely critical to achieving victory.