Hi CIPAWorld!
We just saw a massive win for the defense that we must talk about.
In Demetrius Smith, et al., Plaintiffs, v. Rack Room Shoes, Inc., the Northern District of California dismissed Federal Wiretap Act claim and CIPA Section 631 and Section 632 claims for lack of Article III standing.Demetrius Smith, et al., Plaintiffs, v. Rack Room Shoes, Inc., No. 24-CV-06709-RFL, 2026 WL 2825524 (N.D. Cal. Sept. 21, 2026)
Let’s get into the details, as this ruling shows what a court expects from a plaintiff asserting violation of CIPA through unlawful interception of information and use of third-party tracking technology.
The plaintiffs allegedly visited the Rack Room website in 2024 and subsequently sued the company, claiming that Rack Room assisted third parties – including but not limited to Meta, Attentive, Zeta, Adobe, and Google – with intercepting the content of their private communications, including personally identifiable information.
To establish Article III standing, a plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Here, Plaintiffs had two injury theories: one based on the actual interception of their information, and one based on the attempt to intercept their information.
Both failed the test, but why?
Smith testified that he visited the website only once, while Williams, his wife, submitted a declaration describing only a single visit to the website. Further, Williams acknowledged that her son also had access to and browsed the internet from her computer and phone without supervision. Therefore, Plaintiffs did not introduce a single piece of evidence that the Meta Pixel or any other tracking technology captured any browsing activity associated with Plaintiffs or that the activity recorded was even Plaintiffs’ own browsing activity.
Injuries to others using a browser signed into Plaintiffs’ accounts do not provide a basis for Plaintiffs’ own standing.
Plaintiffs alternatively argued that the use of third-party trackers is circumstantial evidence of actual tracking, but the argument failed since there was no evidence that Plaintiffs’ data was collected by the Meta Pixel on the purchase dates and the mere fact that Plaintiffs visited the website once in 2024 does not raise the inference that their browsing activity was captured. The presence of a third-party tracker does not automatically result in the collection and transmission of personally identifiable information to a third party.
As to the CIPA claims, Plaintiffs contend that the mere presence of an active third-party tracker on the Rack Room website inflicts the type of harm that would be actionable as an intrusion on seclusion. However, the court disagreed. The mere presence of active trackers without any actual tracking does not establish the necessary close relationship to the type of harm traditionally needed for standing.
There was no evidence here that the trackers attempted to collect “embarrassing, invasive, or otherwise private information” from Plaintiffs as they visited Rack Room’s website or that the Meta Pixel engaged in widespread compilation of either Plaintiff’s online activities into profiles so comprehensive that they became highly offensive.
As a last resort, Plaintiffs tried to argue that the false promises in Rack Room’s Privacy Policy were sufficient to show that Plaintiffs’ website activities were sensitive and private enough to support an injury in fact. But Plaintiffs admitted in their deposition that they never even read the Privacy Policy, so there was no way they had any expectation of privacy.
Regardless, unambiguous language in a privacy policy is difficult to treat as sensitive, and the Privacy Policy allowed Rack Room to share users’ information with service providers to perform functions on their behalf or to allow them to perform their functions. So, there was no way Plaintiffs’ argument would have held.
Ultimately, the claims were dismissed for lack of subject matter jurisdiction without prejudice. No second chances. Courts are not letting Plaintiffs get away with providing insufficient evidence of an injury in fact. Plaintiffs must demonstrate an injury in fact that is concrete, particularized, and that shows the requisite close relationship traditionally recognized to meet Article III standing.