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Tambry Bradford

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Trial attorney Tambry represents individuals and public and private companies throughout the U.S. She regularly serves as lead trial counsel for clients facing high-stakes litigation.

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Welcome to Part Two of our series that examines the ECPA as a private right of action for privacy policy inaccuracies.  In Part One of this series, we examined how a wave of state-law wiretapping litigation — predominantly under California’s Invasion of Privacy Act (CIPA) — set the stage for a new and more expansive federal class action litigation threat.  After years of plaintiffs targeting websites that deploy tracking technologies such as pixels and cookies, a series of defense wins in 2025 (and pending legislative action) encouraged plaintiffs’ firms to seek alternative theories. They found one in the Electronic Communications Privacy Act (ECPA). 

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Key Points: An August 2025 federal court ruling has opened the door for plaintiffs to use alleged inaccuracies or misrepresentations in a company’s privacy policy and other privacy disclosures as the basis for a federal wiretapping claim under the Electronic Communications Privacy Act (“ECPA”).

Unlike state wiretapping claims like CIPA, class action plaintiffs can file ECPA claims nationwide and they can carry statutory damages of $100 per day of violation or $10,000, whichever is greater. Plaintiffs’ firms are increasingly leading with ECPA claims in demand letters and class action complaints.

Companies can take steps to help insulate themselves from litigation by assessing and modifying their privacy policy and other data processing disclosures.

Introduction

Any company with a privacy policy that operates a website using so-called tracking technologies such as pixels, cookies, software development kits, or third-party analytics tools (which is practically every company) should be aware of the real class action risk associated with the federal wiretapping law known as the Electronic Communications Privacy Act (ECPA or Wiretap Act) and its “crime-tort” exception.  We have data mined and analyzed thousands of privacy lawsuits using AI to track plaintiff lawyers’ allegations and patterns.

Key point: Plaintiffs’ attorneys have started sending a wave of letters asserting opt-out and access rights under California’s Shine the Light law.

Over the last three months, businesses have been receiving requests from California residents seeking to exercise their rights under California’s Shine the Light law, Cal. Civ. Code § 1798.83. These requests are sent by attorneys who purport to represent a California resident who is a “customer” of, and has an “established business relationship” with, the business receiving the request. The requests seek an accounting of the customer’s personal information disclosed to third parties for direct marketing purposes within the past year.