Health-related websites are increasingly targeted with wiretapping suits if they use pixels or other third-party technologies to power their websites.  A few months ago, a California court dismissed on multiple grounds one such suit challenging the use of website pixels by Clearblue, a company that offers home pregnancy and fertility test kits.  Saedi v. SPD Swiss Precision Diagnostics d/b/a Clearblue, 2025 WL 1141168 (C.D. Cal. Feb. 27, 2025).

The plaintiff, Roz Saedi, a California resident, alleged that she visited Clearblue’s website in September 2022 to research and purchase a fertility product.  Shortly thereafter, Saedi claims that she saw advertisements on a personal social media account for the same product she had viewed on Clearblue’s website.  According to the complaint, Clearblue used website pixels that “instantaneously and surreptitiously duplicated and sent” the plaintiff’s sensitive personal information to third parties for purposes of delivering targeted advertisements.  The plaintiff asserted that this alleged conduct constituted wiretapping in violation of the California Invasion of Privacy Act (“CIPA”) and the federal Wiretap Act and constituted an intrusion upon seclusion under California common law.

The Court granted Clearblue’s motion to dismiss each of the plaintiff’s claims. While the Court gave the plaintiff leave to amend, it expressed that it “harbor[ed] serious doubt” that the plaintiff could cure the deficiencies in an amended complaint.

• CIPA Claim Barred by One-Year Statute of Limitations: The Court held that the plaintiff’s CIPA claim is “facially time-barred” by CIPA’s one-year statute of limitations because the plaintiff brought her claim in August 2024, nearly two years after the purported collection of her data in September 2022.  The limitations period was not tolled because the plaintiff alleged “general knowledge that the Website collected [her] information,” which the Court held “is sufficient to provide constructive notice of the Privacy Policy” disclosing the alleged data collection practices.

• Federal Wiretap Act Claim Barred by Party Exemption: The Court held that the federal Wiretap Act’s party exemption barred plaintiff’s claim because Clearblue, “as the owner of the Website,” was “party to the communications” allegedly intercepted.  The plaintiff invoked the so-called crime-tort exception to the party exemption, contending that the interception was allegedly carried out “for the purpose of committing a criminal or tortious act,” based on Clearblue’s alleged HIPAA and CIPA violations.  The Court held that this exception did not apply because (i) the plaintiff conceded that Clearblue is not a covered entity under HIPAA, and (ii) the CIPA claim is premised on the same alleged interception as the federal Wiretap Act claim, which thus fails to satisfy “the requirement that the alleged criminal or tortious purpose is ‘independent of the interception itself.’”
• No Intrusion by Party to Communication: The Court held that there was “no ‘intrusion’ for purposes of an invasion of privacy claim.”  The relevant question, the Court reasoned, is whether Clearblue—and not any third party—intruded upon the plaintiff’s alleged communications.  Clearblue did not, and could not have, done so, because “one cannot logically intrude into communications to which they are a party.”