Recently, a California federal judge dismissed a suit challenging the use of third-party email marketing pixels by clothing retailer Gap, Inc., concluding plaintiff’s “scattershot and vague assertions” were insufficient to state a plausible claim under the California Invasion of Privacy Act (“CIPA”). Ramos v. Gap, Inc., 2025 WL 2144837 (N.D. Cal. July 29, 2025).
The one plaintiff in this case asserted, on behalf of a putative class, that Gap used a third-party pixel in its marketing emails to allegedly collect data from plaintiff’s interactions with Gap’s marketing emails and website, such as a customer’s “email address, email open rates, and content click rates,” without plaintiff’s consent. Plaintiff asserted that this conduct constituted an unlawful wiretap under CIPA Section 631.
The Court had previously ordered dismissal, without prejudice, of plaintiff’s initial complaint. Finding that plaintiff had “failed to cure the deficiencies that the Court previously identified,” the Court ordered dismissal of plaintiff’s first amended complaint (“FAC”), without leave to amend, on the following grounds:
- The Party Exception Applies. The Court held Gap was a “party to the communication” and thus could not be held directly “liable under § 631(a).” The Court rejected plaintiff’s contrary theories, that Gap “tapped [plaintiff’s] private communications” with his email provider by “tracking when a Class Member opened one of Defendant’s marketing emails,” and “tapped third-party emails whenever a Class Member forwarded one of Defendant’s marketing emails to another person.” The Court further declined to permit plaintiff to conduct discovery to bolster his pleadings, emphasizing that plaintiff could not “cycle through theories of liability with the hope of stumbling upon one that can withstand a motion to dismiss.”
- Section 631(a)’s First Clause Inapplicable to Internet Communications. Reaffirming its prior ruling on Gap’s first dismissal motion, the Court held that § 631(a)’s first clause—which bars, as relevant here, the intentional tapping “with any telegraph or telephone wire, line, cable, or instrument”—does not apply to the tapping of communications through the internet.
- No Interception of Communications’ “Contents.” Finally, the Court held plaintiff had failed to allege the interception of the “contents” of plaintiff’s communication under CIPA. The Court drew upon the Ninth Circuit’s interpretation of “contents” under the Electronic Communications Privacy Act (“ECPA”), explaining that under CIPA, only “the communication itself,” not “information about a user’s communication,” was “protected.” The Court accordingly rejected, as unsupported and at odds with Ninth Circuit precedent, plaintiff’s theories that (1) “a user’s ‘click’ on a URL contained within Defendant’s marketing emails is itself content,” and that (2) “the URLs reveal the content of Defendant’s marketing emails such that [the third party] can somehow ‘read’ the actual marketing emails.”