Governor Newsom Signs SB 690, Cutting Off a Major CIPA Lawsuit Theory
California businesses facing the recent wave of CIPA website lawsuits just got some relief.
On September 30, Governor Gavin Newsom signed Senate Bill 690, cutting off private lawsuits alleging that website and app technologies violate the California Invasion of Privacy Act’s pen register and trap-and-trace provision, California Penal Code § 638.51.
The Governor did not mince words about why. In his signing message, Newsom pointed to lawsuits and demand letters seeking settlements from small businesses that unknowingly installed software tracking or sharing information about website visitors. He described SB 690 as protection against “overzealous lawsuits” under a statute enacted long before today’s technology.
SB 690 amends CIPA’s civil-remedy provision so that only the California Attorney General may bring these claims against private actors based on conduct occurring on a website, online application, or mobile application. Plaintiffs have increasingly characterized common website technologies, including cookies, pixels, and analytics tools, as unlawful “pen registers.” CIPA’s civil-remedy provision otherwise allows statutory damages of $5,000 per violation without requiring proof of actual damages.
The law also expressly reaches certain pending litigation. It applies retroactively to pending claims in actions commenced within two years before its operative date, making the change immediately relevant to settlement and litigation strategy in existing cases.
SB 690 does not end CIPA website litigation altogether. It leaves California Penal Code § 631 untouched, meaning plaintiffs can continue pursuing separate CIPA theories involving the alleged interception of website communications. Newsom acknowledged that broader problem in his signing message, noting that other decades-old CIPA provisions remain susceptible to abuse and urging the Legislature to continue working on the issue next year.
Pending cases and demands based on the pen-register theory should now be reevaluated before settlement.