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Our CIPA Defense Guide explains how chatbot, pixel and wiretap claims work after California’s SB 690, the statutes and rulings that matter, what to do in the first 72 hours after a demand letter, a defense map, the evidence that wins, and a 30-day plan to stop being a target. Read all 18 pages below.
Compliance Guide · Edition 01The CIPA
Defense
Guide
Chatbot, pixel and wiretap claims after SB 690: how the lawsuits work, what courts are deciding, what to do when a demand letter arrives, and how to stop being a target.
The guide
SB 690 took away one weapon. It left the strongest one.
For four years, the California Invasion of Privacy Act has been the most common privacy claim in the country, mostly aimed at ordinary websites. On January 1, 2027, SB 690 ends private pen-register claims against websites and apps. That is good news, but it isn’t the end of CIPA risk.
Wiretapping (§ 631) and recording (§ 632) claims still carry $5,000 per violation, and they’re about the content of what people type and say. Chat widgets, AI assistants and voice bots are where plaintiffs are already heading. This guide is for the people who will get the demand letter, and the people who can make sure it never comes.
The 60-second answer
If you got a letter: don’t ignore it, don’t pay it on day one, preserve your site as it was, and call counsel and your insurer. If you didn’t: get consent before ad tags fire, mask session replay, and put a clear notice above every chat box.
This guide is general information, not legal advice. Talk to a litigator about any specific claim.
After SB 690, the claims move
CIPA filings roughly quadrupled in California from 2023 to 2025. SB 690 removes the theory behind many of them, but not the ones built on what people actually say.
Signed September 30, 2026, effective January 1, 2027. It removes the private right of action for pen-register and trap-and-trace claims (§ 638.51) based on websites and apps, and it reaches suits filed on or after January 1, 2025. The Attorney General and CalPrivacy can still enforce. It adds no general business-purpose exemption.
Next session
In signing, Governor Newsom urged lawmakers to revisit other “decades-old” CIPA provisions. More reform is possible in 2027, but nothing is guaranteed.
Where claims go next
| Theory | Typical target | 2027 trend |
|---|---|---|
| § 638.51 pen register | Any site with tracking pixels and analytics | Private claims end |
| § 631 wiretap | Chat widgets, AI assistants, session replay, form capture | Rising |
| § 632 / § 632.7 recording | Call recording, voice AI, transcription and note-takers | Rising |
| Other states and federal | Wiretap and pixel claims under other state laws and ECPA | Testing new venues |
The statutes plaintiffs use
CIPA was written in 1967 for telephones. Plaintiffs apply it to websites by arguing that a vendor’s code is a third party listening in. Here’s the toolkit.
| Provision | What it prohibits | How it’s used online |
|---|---|---|
| CIPA § 631(a) | Tapping a line; willfully reading or learning the contents of a communication in transit without all parties’ consent; using what was learned; or aiding someone who does | The site “aided” a chat, replay or pixel vendor that captured messages or form entries |
| CIPA § 632 | Eavesdropping on or recording a confidential communication without all parties’ consent | Recorded calls, voice AI, chat with sensitive content |
| CIPA § 632.7 | Intercepting or recording communications involving cellular or cordless phones without consent | Customer service calls to or from mobile phones |
| CIPA § 638.51 | Installing a pen register or trap-and-trace device without a court order | Pixels capturing IP and device data. No private claims for websites from 2027 |
| CIPA § 637.2 | Private right of action: greater of $5,000 per violation or three times actual damages | Why each page view or chat can be multiplied across a class |
| Federal Wiretap Act | Intercepting communications, with a one-party consent rule unless the purpose is criminal or tortious | The “crime-tort” exception, especially for health data and AI training |
Beyond California
Pennsylvania, Florida, Washington and others have wiretap laws plaintiffs have tried against session replay and chat. Results have been mixed, with many dismissals on standing or coverage.
In 2024, the state’s highest court held in Vita v. New England Baptist Hospital that its wiretap act doesn’t clearly reach website browsing activity.
A wave of suits claimed email tracking pixels violated a telephone-records law. Many have been dismissed early, but the theory shows how far plaintiffs will stretch.
Risk by technology
Not every tool carries the same exposure. Risk rises when a tool captures content, a vendor can use that content for itself, and the person had no notice.
| Technology | Plaintiffs’ theory | 2027 risk | Main control |
|---|---|---|---|
| AI chatbots & support agents | Vendor and model provider read conversations in real time and use them | High | Notice before the first message; no vendor training |
| Live chat widgets | Chat vendor intercepts messages as a third party | High | Notice above input; vendor limited to your purposes |
| Voice AI & call recording | Recording or analyzing calls without all-party consent | High | Clear recording disclosure at the start of every call |
| Session replay | Captures keystrokes and form entries as they’re typed | Medium | Mask all text fields; consent first |
| Ad pixels on sensitive pages | Page titles, searches or form data sent to ad platforms | Medium | Remove from health, finance and chat pages |
| Meeting note-takers | Recording and training on conversations | Medium | Disclosure to all attendees; training off |
| Video + pixel | VPPA: viewing history shared with ad platforms | Medium | Pixel off video pages or VPPA consent |
| Basic analytics pixels | Pen register (§ 638.51) | Lower | Still honor consent and opt-outs |
The three risk multipliers
Content (what people type or say), vendor self-use (training, profiling, ads), and no notice before collection. Remove any one and the claim gets much weaker.
The rulings that matter
Courts don’t agree on everything, but these decisions show where cases are won and lost.
Consent must come first. Agreeing to a privacy policy after the session started didn’t cover what was already captured.
Session replay that captured names, addresses and payment details in real time plausibly captured “contents.” Claim revived.
No standing for session replay of non-sensitive shopping activity (Pennsylvania law). Sensitive data could change the result.
Summary judgment for the retailer, affirmed on appeal: no evidence the chat vendor read encrypted messages in transit.
Summary judgment again on encryption evidence; plaintiff’s expert declaration excluded.
2025: vendor capable of using call data for itself could be a third party. Oct 22, 2026: claims dismissed where the privacy statement disclosed “service providers.” Leave to amend.
Training on meeting recordings could fit the federal Wiretap Act’s crime-tort exception. Claim survives.
Alleges ad pixels on ChatGPT.com sent conversation context to Meta and Google. Pending.
Massachusetts wiretap act doesn’t clearly cover website browsing. A signal that other states may limit these theories.
Trial courts split on whether pixels are pen registers. SB 690 ends the private fight for websites from 2027.
Read together
Cases turn on four facts: was content captured, could the vendor use it for itself, did the person consent first, and can the plaintiff prove any of it. Your defense is evidence on all four.
Anatomy of a demand letter
Most CIPA matters start with a letter, not a lawsuit. They follow a pattern. Knowing it helps you respond calmly.
Questions your counsel will ask
- Was the named tool actually on your site on the date claimed?
- Did it capture content, or just page and device data?
- Did a banner or notice appear before it loaded?
- Can the vendor use the data for its own purposes?
- Do your terms include arbitration and a class waiver, and did the visitor agree to them?
- Is the claim only under § 638.51, which SB 690 may defeat?
Ignore it, pay immediately, or reply yourself with admissions about how your site works.
Calendar the deadline, preserve evidence, notify your insurer, and send it to counsel.
Search your other sites for the same tool. Letters often come in waves from the same firm.
Your first 72 hours
What you do in the first three days shapes every option you have later.
Fix, but preserve
Remediating quickly limits future exposure and helps settlement. Just make sure counsel has captured the old configuration first, so you can prove what was and wasn’t collected.
A Captain Compliance scan shows every tracker and vendor on the pages named, when they fire, and whether consent gates them. It’s the starting point counsel will want.
The defense map
Every defense depends on facts. These are the arguments defendants use most, and the facts each one needs.
| Defense | The argument | Facts that make it work |
|---|---|---|
| SB 690 | No private § 638.51 claim for websites and apps | Claim is pen-register only; suit filed on or after Jan 1, 2025 |
| Standing | No concrete injury from collecting non-sensitive data | No health, financial or intimate data captured; masking on |
| Consent | The person agreed before collection | Banner or notice shown first; clickwrap terms; consent logs |
| Party exception | A party to a conversation can’t eavesdrop on it; the vendor acted for the site | Vendor contract limits use to your purposes; no training or ads |
| No contents | Only record data (URLs, clicks, device data) was captured | No form, chat or keystroke capture; tag configs prove it |
| Not “in transit” | Nobody read the message while it was moving | Encryption in transit; access logs showing no vendor reading |
| No willfulness | The vendor didn’t knowingly read contents | Automated processing only; no human review |
| Arbitration | Claims belong in individual arbitration | Clickwrap acceptance before the session; enforceable class waiver |
| Jurisdiction | No sufficient California connection | Plaintiff not in California; site not aimed at California |
The pattern
Defenses that win early (SB 690, standing, arbitration) depend on documents. Defenses that win later (contents, transit, party exception) depend on technical evidence and experts.
Terms linked in a footer that visitors never click usually aren’t enough for consent or arbitration. Put agreement in front of people when it matters.
Evidence that wins
The cleanest defense wins came from defendants who could prove what their tools did. Build this file before anyone asks for it.
The evidence file
Lessons from the wins
Encryption in transit and secure storage, plus no proof the vendor read messages, supported summary judgment.
The retailer’s expert explained the data flow. The plaintiff’s expert declaration was excluded as improperly sworn.
Default masking meant no sensitive data was captured, which defeated standing.
A clear “service providers” disclosure the account holders had agreed to ended their claims.
Save a dated tracker report for every site.
Never delete old tag manager versions.
Keep contracts and data-flow letters in one place.
Stop being a target
Plaintiffs’ firms find targets by scanning page source. Make your site a poor candidate.
- Load the consent layer before any marketing or replay tag
- Default non-essential tags to blocked
- Honor GPC automatically
- Keep timestamped consent logs
- Mask every text input and form field by default
- Exclude checkout, account, health and support pages
- Gate replay behind consent
- Confirm the vendor doesn’t reuse recordings
- Remove ad pixels from sensitive, chat and video pages
- Don’t send page titles, searches or form values
- Review server-side conversion APIs too
- Use clickwrap for accounts and checkout
- Include arbitration and class waiver where appropriate
- Disclose service providers and vendors plainly
We use cookies and similar tools
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Chatbots and voice AI
A pixel captures metadata. A chatbot captures what people actually say. That’s why AI conversations are where CIPA risk is concentrating after SB 690.
Controls for chat and AI assistants
- Notice above the input, visible before the first message, naming AI and service providers
- No vendor training on your customers’ conversations, in the contract
- List the model provider as a subprocessor and disclose it
- No ad pixels on pages where chat runs
- Retention limits on transcripts, stated publicly
- Human review disclosed if people read samples
- Extra care for health, finance and minors
Controls for calls and voice AI
- Announce recording and AI analysis at the start of every call
- Offer a way to continue without recording where possible
- Confirm vendors don’t train on recordings
You’re chatting with an AI assistant. Messages are processed by [Company] and our service providers, including [AI provider], to answer your question and are kept for [30 days]. They aren’t used to train outside AI models. Privacy notice
“This call is recorded and analyzed by our service providers, including AI tools, for quality and to help with your request. If you’d prefer not to be recorded, say ‘no recording’ and we’ll continue without it.”
Why notice placement matters
The Google CCAI ruling helped the account holders’ defense because they’d agreed to a clear disclosure. A caller who never agreed to anything kept their consent argument. Notice at the point of conversation covers everyone.
Terms that keep vendors your tools
The party-exception defense depends on your vendor acting for you, not for itself. Your contract is the proof.
| Clause | What it should say | Why it matters |
|---|---|---|
| Purpose limitation | Vendor processes data only to provide the service to you | Supports “extension of the site” defense |
| No training | No use of your data to train or improve models for others | Training drove the Otter.ai ruling |
| No resale or ads | No selling, sharing or advertising use | Keeps vendor a service provider |
| Security | Encryption in transit and at rest; access controls; logging | Evidence for “not in transit” defenses |
| Retention | Defined retention and deletion on request | Limits what’s discoverable and harmful |
| Subprocessors | Named list, including model providers; notice of changes | Disclosure accuracy |
| Litigation cooperation | Vendor provides technical declarations and records on request | You’ll need their expert facts |
| Indemnity | Vendor covers claims caused by its own use or breach | Shifts risk to the party in control |
Check the defaults
Many chat and analytics tools reserve broad rights in their standard terms. If you didn’t negotiate, assume the vendor can use your data for itself until you’ve read the contract.
Get a short written description from each conversation vendor of how data flows, who can access it and whether it’s encrypted. It’s much harder to get after a lawsuit.
Thirty days to a harder target
You don’t need to wait for a letter. This plan closes the most common gaps in a month.
CIPA-ready for 2027?
Tick each item only if you can show evidence for it.
Know your tools
Consent & notice
Minimize
Contracts & terms
Respond
Questions we hear most
No. It ends private pen-register claims based on websites and apps. Wiretap and recording claims remain, with the same $5,000 statutory damages.
Not necessarily. Claims follow California visitors, and other states have their own wiretap laws. Courts do look at whether your site targets California.
It helps if nothing optional loads before a choice and you can prove it. It doesn’t cover chat content or calls, which need their own notices.
Sometimes that’s the business answer. But the price depends on your facts, so let counsel assess the defenses first.
Possibly. Many cyber and media policies address privacy claims, but some exclude “wrongful collection.” Notify early and read the exclusions.
No. Add notice before the first message, limit vendor use, and keep records. That addresses the facts plaintiffs rely on.
Glossary
Where this comes from
This guide draws on the California Invasion of Privacy Act as amended by SB 690, published court decisions and complaints, filing data from Fisher Phillips, and law firm analyses of SB 690 and recent Ninth Circuit rulings.
Case descriptions summarize published rulings and allegations. Allegations in complaints have not been proven. Several matters described are ongoing and may change.
Information is current as of November 2026. This guide is general information and is not legal advice. Talk to qualified counsel about any specific claim.
Captain Compliance scans your sites for every tracker, chat and replay tool, gates them behind consent, honors GPC and keeps the logs you need if a letter arrives.
Companion reading: The State of Privacy & AI Governance 2026–2027, The ADMT & AI Notice Playbook and The Opt-Out & GPC Readiness Guide.
See your site the way
a plaintiff’s firm
does.
Our free scan lists every chat, pixel and session replay tool on your site, shows what fires before consent, and gives you the baseline counsel will ask for.
Find the tools
Every tracker, chat and replay script.
Gate them
Nothing optional loads before consent.
Keep the proof
Monthly scans and consent logs on file.
captaincompliance.com
By Richart Ruddie, Founder & CEO
Not legal advice. Current as of November 2026.
Put this into practice
Turn privacy guidance into working controls.
Captain Compliance helps teams discover tracking technologies, enforce consent, manage privacy requests and document the evidence behind every decision.
