Calif. Plaintiff Sues Future US for Installing Tracking Software on Its Webpages

Future US, publisher of magazines and websites targeting the home and garden, videogame, lifestyle and finance markets, tracks users without their consent when they visit the publications’ websites, alleged a privacy class action Thursday (docket 1:24-cv-02931) in U.S. District Court for Southern New York in Manhattan.

Digvijay Motiani of Santa Clara, California, alleges the publisher of Broadcasting & Cable, PC Gamer, Marie Claire and Kiplinger installed tracking software on his browser when he visited a Future website, in violation of the California Invasion of Privacy Act (CIPA).

The CIPA proscribes a “person” from installing or using a “pen register” or a “trap and trace device” without obtaining a court order, said the complaint. A pen register is a device or process that records outgoing information; a trap and trace device records incoming information, the complaint said. Historically, law enforcement used pen registers to record phone numbers of outgoing calls from a particular phone line and trap and trace devices to record numbers of incoming calls to the line, said the complaint.

Though the CIPA was enacted pre-internet, the California Supreme Court “regularly reads statutes to apply to new technologies where such a reading would not conflict with the statutory scheme,” said the complaint, citing the 2013 In Re: Google Inc. Gmail Litigation multidistrict litigation (docket 13-md-02430). It cited the 2022 Javier v. Assurance case, in which the court determined: “Though written in terms of wiretapping, [CIPA] Section 631(a) applies to Internet communications.”

The complaint also referenced Matera v. Google from 2022 in Northern California District Court: “When faced with two possible interpretations of CIPA, the California Supreme Court has construed CIPA in accordance with the interpretation that provides the greatest privacy protection," said the court.

Motiani alleges three trackers -- from TripleLift, GumGum and Audiencerate -- are installed on users’ browsers when they visit a Future website, and that the company uses the trackers to collect visitors’ IP addresses. Because the trackers capture visitors “routing, addressing, or signaling information,” the trackers qualify as a “pen register” under CIPA, the complaint said. By installing and using the tracks without Motiani’s consent, Future violated CIPA section 638.51(a), it said.

The tracker companies sell the technology to Future for a fee to enable the publisher to sell advertising space on its websites for revenue generation, the complaint said. TripleLift, GumGum and Audiencerate use their trackers to “receive, store, and analyze information collected from website visitors,” it said.

Motiani seeks orders declaring that Future violates CIPA and certifying the class, said the complaint. He seeks damages of $5,000 for each CIPA violation, an order of restitution, pre- and post-judgment interest and attorneys’ fees and costs.