CIPA litigation is getting wild and to the point that there are attempts to amend it. In the meantime however there is a lot of litigation and the best way to protect is to work with a privacy software company like Captain Compliance.
CIPA Litigation Heats Up, Ubisoft Offers a Reprieve (But How Much?)
The landscape of digital privacy litigation continues to evolve rapidly, with the California Invasion of Privacy Act (CIPA) emerging as a significant battleground. Originally enacted to combat telephone eavesdropping, CIPA is now being used against website tracking tools like cookies, pixels, and session replay. A surge in class actions alleges that such data collection is unlawful interception under CIPA, especially Section 631. With statutory damages of $5,000 per violation, the risks are massive.
The April 2025 decision in Lakes v. Ubisoft brought a temporary win for businesses. The court dismissed the case with prejudice, ruling that Ubisoft obtained valid consent, thus defeating claims under CIPA § 631, the Wiretap Act, VPPA, and more. But does this mean Ubisoft met all the strict requirements of prior consent? This article dissects that question and explores the implications for compliance strategies going forward.
Decoding Lakes v. Ubisoft: How Consent Became the Decisive Factor
In Lakes v. Ubisoft, plaintiffs accused Ubisoft of using the Meta Pixel to share users’ personal data with Meta without valid consent. Ubisoft countered that users consented through multiple website touchpoints:
- Cookie Banner: Appeared upon first visit, offering controls over cookies.
- Account Creation: Required checkbox consent to Terms and Privacy Policy.
- Checkout Process: Reaffirmed policy visibility.
- Privacy Policy: Explained cookie use and third-party sharing.
The court applied a “reasonable user” standard and found the combination of these notices sufficient to constitute valid consent. It dismissed the claims with prejudice and denied leave to amend, showing how crucial these layered notices were.
CIPA Consent vs. Other Standards: Is the Bar Really Lower Than Arbitration?
Critics argue CIPA’s consent bar is lower than that for arbitration agreements, which require “clear and unmistakable” evidence of agreement. While CIPA § 631 only requires “consent of all parties,” in practice, courts want:
- Clear, timely disclosures of tracking practices
- Affirmative acts of consent (e.g., checkboxes, opt-ins)
Comparison Table:
| Feature | CIPA § 631 (Web Tracking) | CIPA § 632 (Call Recording) | Arbitration Agreements |
|---|---|---|---|
| Legal Standard | “Consent of all parties” | Prior consent to record | “Clear & unmistakable” assent |
| Usual Mechanism | Cookie banners, checkboxes | Audio recording notice | Clickwrap, signed agreement |
| Best Practices | Opt-in before any tracking | Notice before call begins | Explicit, documented assent |
The Timing Imperative: Why Prior Consent is King
The Ubisoft case may have glossed over a major issue: the need for prior consent, as mandated by the Ninth Circuit in Javier v. Assurance IQ. There, the court ruled that consent obtained after data collection begins is invalid under CIPA § 631(a). If cookies and trackers fire on page load, post-load consents—like those given during account creation—are too late.
To comply with Javier, businesses must:
- Display a consent banner immediately upon page load
- Block all non-essential trackers until opt-in consent is received
- Disclose what is being tracked and why
- Allow users to affirmatively opt in (no implied consent)
A banner that doesn’t technically block tracking until opt-in will likely fail under Javier. So even though Ubisoft won its case, its setup may not survive future scrutiny unless pre-consent blocking is confirmed.
Reframing the CIPA Consent Argument: Practical Steps for Businesses
To build a legally defensible consent framework under CIPA:
- Use Pre-Consent Blocking: Implement cookie tools that block trackers until consent is granted.
- Provide Clear Disclosures: Include what data is tracked, why, and who gets it (third parties).
- Keep Policies Accurate: Sync banner text with Privacy Policy and Cookie Policy language.
- Offer User Control: Let users opt in, opt out, and change preferences anytime.
- Document Everything: Keep records of banners, settings, logs of user choices, and policy versions.
- Plan for Other CIPA Risks: CIPA § 638.51 may also apply to IP address tracking, so be thorough.
Post-Ubisoft Compliance: What’s the Real Takeaway?
While Ubisoft is a win for defendants, businesses should not grow complacent. The Ninth Circuit’s ruling in Javier makes it clear: prior consent is non-negotiable. Implementing proper consent—technically and legally—must be a top priority.
In summary, winning under CIPA depends not just on having a banner or privacy policy but ensuring:
- Consent is prior to data collection
- Users give affirmative, opt-in permission
- Technical execution prevents tracking without consent
Relying too heavily on the Ubisoft decision without building a robust, Javier-compliant system may leave your business exposed to costly litigation. Prioritize privacy by design—not by defense. Book a demo below to learn more.
