Website Tracking, Wiretap, and Accessibility Claims: Litigation and Compliance Services
Website privacy and accessibility litigation continues to expand nationwide. Organizations across industries are facing a growing number of pre-suit demand letters, arbitrations, and putative class action lawsuits—often before they realize a potential issue exists. Dykema’s Data Privacy and Cybersecurity Team has significant experience advising clients on these matters, helping organizations to proactively identify potential exposure, develop practical compliance strategies, and respond effectively to claims.
Protect your business with multidisciplinary counsel covering incident response, compliance, litigation, and risk management. Dykema helps organizations navigate today's complex privacy and cybersecurity landscape with practical, business-focused legal guidance.
Dykema’s team has market-leading experience in handling the surge of wiretapping and invasion of privacy claims targeting businesses’ websites and digital marketing practices. These matters typically challenge the use of common tracking technologies such as cookies, pixels, and beacons (including Meta Pixel, Google Analytics, LinkedIn Insight Tag, and TikTok pixel), session replay software, and website chat features deployed on digital properties and in marketing communications.
Clients across virtually every industry sector are receiving these claims with increasing frequency and turning to Dykema for the trusted counsel and strategic guidance that have defined our firm for more than a century. Our attorneys have obtained dismissals and negotiated early, favorable resolutions of tracking technology claims, in many cases before litigation is filed.
Website tracking technology claims are typically asserted through putative class actions or pre-suit demand letters alleging that an organization’s website improperly disclosed users’ communications or browsing activities to third parties through tracking technologies. Plaintiffs frequently invoke:
- Federal and state wiretap and eavesdropping statutes, including the Electronic Communications Privacy Act (ECPA), California Invasion of Privacy Act (CIPA) (including Section 631 wiretapping and Section 638.51 pen register and trap and trace theories), the Florida Security of Communications Act (FSCA), the Pennsylvania Wiretapping and Electronic Surveillance Control Act (WESCA), and the Massachusetts Wiretap Act
- The Video Privacy Protection Act (VPPA), particularly for websites with video content
- Health privacy statutes, including HIPAA, the California Confidentiality of Medical Information Act (CMIA), and the Washington My Health My Data Act, particularly for healthcare, telehealth, and patient-facing platforms
- State consumer privacy statutes
- Common law invasion of privacy theories
A notable aspect of this trend is the increasing number of serial pro se litigants and self-described “tester” plaintiffs who actively search the web for potential claims, often filing similar allegations against numerous organizations, regardless of whether they otherwise would have a reason to visit the site.
Dykema also has substantial experience defending website accessibility claims brought under federal, state, and local laws, including:
- Americans with Disabilities Act (ADA)
- New York State Human Rights Law (NYSHRL)
- New York City Human Rights Law (NYCHRL)
- Comparable state accessibility statutes
These claims, often brought by repeat plaintiffs or advocacy groups, frequently seek:
- Attorneys’ fees
- Statutory damages, sometimes multiplied by a number of alleged visits
- Website remediation commitments
- Injunctive relief
We continue to see an increase in accessibility litigation nationwide, including in jurisdictions such as New York, Florida, and California.
Many organizations understandably view tools such as Google Analytics, Meta Pixel, and similar technologies as routine components of modern websites. Others may not have complete visibility into which technologies are deployed on their sites or how those technologies are configured.
The viability of many tracking technology claims depends heavily on facts specific to the website and technology at issue, including:
- The particular tracking technology involved and how it is deployed on the site
- Whether consent mechanisms are implemented and functioning properly
- What user information, if any, is transmitted
- The applicable jurisdiction and governing law
As a result, early factual and technical investigations are often critical.
If your organization receives a demand letter or complaint alleging wiretapping, invasion of privacy, or website accessibility violations, early decisions matter. We generally recommend that organizations:
- Do not ignore the letter. Deadlines to respond or preserve defenses may be short. Engage counsel before responding to the claimant or modifying the website.
- Preserve the current state of the website, including tag manager configurations, consent settings, and analytics implementations, before making any changes.
- Implement a litigation hold covering relevant website, marketing, and vendor records.
- Notify insurance carriers under applicable cyber, media, and general liability policies.
- Assess potential indemnification targets
Dykema’s Data Privacy and Cybersecurity Team helps clients navigate this rapidly evolving risk landscape through both defense and preventative counseling. We encourage organizations to engage counsel before litigation arises.
We regularly advise organizations that:
- Operate consumer-facing websites
- Use analytics or online advertising technologies
- Collect user data online
- Operate e-commerce platforms
- Maintain customer portals or mobile applications
- Operate healthcare scheduling platforms and patient-facing web services
We encourage you to reach out to us early so that we may assist your organization with:
- Responding, as appropriate, to pre-suit demand letters
- Defending putative class actions
- Responding to regulatory inquiries and enforcement actions concerning tracking technologies, including matters involving the FTC, state attorneys general, and the HHS Office of Civil Rights
- Spearheading technical investigations involving website technologies and data flows
- Evaluating and updating consent management platforms, cookie disclosures, privacy notices, and website terms of use
- Coordinating with internal stakeholders and technology vendors to validate technical allegations
- Reviewing insurance portfolios to identify potential coverage gaps and evaluate available risk-transfer options
For more than 100 years, Dykema has delivered practical, business-focused legal counsel. We stand ready to help our clients navigate website privacy, tracking technology, and accessibility risks, with solutions tailored to each client’s objectives.
