Plaintiffs’ counsel have developed a new weapon in their arsenal for privacy litigation involving tracking pixels:  Arizona’s “Telephone, Utility and Communication Service Records Law,” A.R.S. § 44-1376 et seq. 

Privacy Litigation Regarding Tracking Pixels

Over the past few years, numerous businesses have been hit with putative class-action lawsuits asserting that their use of tracking pixels and related tools for digital analytics is unlawful under various state or federal privacy laws or regulations.  Until recently, relatively few of those cases had been filed in Arizona courts or under Arizona law. 

In the past few weeks, however, multiple such cases have been filed in Arizona courts, asserting claims under Arizona law, including A.R.S. § 44-1376 et seq.  Among other things, plaintiffs in these cases assert that businesses using tracking pixels are violating the Arizona Telephone, Utility and Communication Service Records Law, which was enacted in 2006, because they are knowingly procuring “communication service records” (as defined in the statute) without customer authorization or by deceptive means.  

As a result of these cases, and because neither the law nor plaintiffs’ theories have been thoroughly tested at this point, it appears that Arizona might become a new battleground for nationwide privacy litigation.