Pixels, a piece of tracking software businesses use to assess the success of their advertising campaigns, are creating headaches for in-house counsel as decades-old laws are being revived by litigants. Unlike cookies, pixels cannot be easily blocked with privacy software. The potential consequences for improper use have increased due the Federal Trade Commission’s increasingly close scrutiny of technology that collects and shares consumer data.

The common litigation strategy for pixel consumer class actions has focused on the plaintiffs’ lack of express consent to share their personal data with the third parties that made the tracker. Litigants are most active against healthcare providers and businesses that host videos online. On the regulatory side, the FTC announced two enforcement actions against telehealth companies allegedly transmitting sensitive medical data to adtech giants like Google and Meta. In response to this trending litigation, many privacy policies now include explicit language describing the tracking technologies used. This brings up an interesting tension for professionals writing privacy policies: privacy policies must be detailed enough to ensure informed consent while remaining short, engaging, and accessible to consumers. Navigating the emerging privacy landscape is increasingly complex, and prudent businesses should proactively engage in these issues.

Blair Robinson, Law Clerk - Not yet admitted to practice, authored this article.