Court Grants Summary Judgment for CIPA Defendant after Invoking the Rule of Lenity

Introduction 

Defendants enmeshed in the wave of online wiretapping litigation scored a victory on October 17, 2025, when Judge Vince Chhabria invoked the rule of lenity and granted summary judgment for the defendant on California Invasion of Privacy Act (CIPA) claims in Jane Doe v. Eating Recovery Center (ERC) LLC, case no. 3:23-cv-05561-VC (N.D. Cal.), Dkt. 167. While it remains to be seen whether other courts will follow suit, Judge Chhabria’s order will doubtlessly be useful for defendants advancing similar lenity-based arguments in wiretapping cases going forward.

Background

California enacted the CIPA in 1967 to regulate wiretapping and eavesdropping on confidential communications. CIPA is primarily a criminal statute, but it also includes a civil private right of action with a statutory damages provision that has provoked waves of litigation since the early 2000s, first as to companies’ call recording practices, and then as to various internet technologies. See Cal. Penal Code. § 637.2. The most recent wave of litigation has focused on consumer-facing websites that use commonplace advertising technologies like cookies, pixels, and similar tracking software. The ensuing wave of litigation has overwhelmed website operators over the last two years, with many facing multiple demand letters and cases across both state and federal courts in California. And it has obliged courts to grapple with how to apply a nearly sixty-year-old statute to internet technologies that did not exist when it was drafted. Given the challenges inherent in such an exercise, federal and state courts remain split on a number of important legal issues, and uncertainty continues. 

The rule of lenity can be an attractive defense for defendants in wiretapping cases. That rule, which is grounded in core due process principles, instructs courts to interpret criminal statutes like CIPA narrowly and construe ambiguities in the defendant’s favor. Given CIPA’s age and opaque language, the rule of lenity defense is an important defense to CIPA wiretapping cases. But so far, court rulings have been mixed: several federal courts have decided not to apply the rule of lenity in these cases. 

Judge Chhabria’s Order in Doe v. Eating Recovery Center LLC

A positive legal development occurred last week for defendants facing the recent tsunami of CIPA litigation when, in Doe v. Eating Recovery Center LLC, Judge Chhabria of the U.S. District Court for the Northern District of California applied the rule of lenity in a CIPA case—noting that “courts are issuing conflicting rulings, and companies have no way of telling whether their online business activities will subject them to liability”—and granted summary judgment to a company offering an eating disorders website. 

Doe v. ERC was a run-of-the-mill wiretapping case. ERC used the Meta Pixel on its website from 2019-2024 to improve outreach for treatment services. The Pixel’s default configuration sent Meta page URLs, time-on-page, referrer paths, and certain button clicks. The plaintiff alleged that ERC violated Section 631 of CIPA by sharing that data with Meta. Section 631(a) of CIPA imposes liability on anyone who:

1. “intentionally taps, or makes any unauthorized connection . . . with any telegraph or telephone wire, line, cable, or instrument”;
2. “willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state”;
3. “uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained”; or
4. “aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section.”

Cal. Penal Code § 631(a). 

In Doe v. ERC, the plaintiff alleged that Meta violated the second clause of CIPA because it read, attempted to read, or attempted to learn the contents of her communications with ERC while they were in transit, and ERC in turn violated the fourth clause by aiding or conspiring with Meta. On summary judgment, ERC challenged that theory as deficient in two respects: (1) the data that Meta received was not the “contents” of the plaintiff’s communications with ERC; and (2) even if it was, Meta did not attempt to read the contents of the communications while they were in transit. 

Judge Chhabria ruled for the plaintiff on the first issue but for ERC on the second issue. He found that the undisputed evidence established that Meta did not read, attempt to read, or attempt to learn the “contents” of a communication while they were “in transit” as required by Section 631(a). In doing so, he rejected the plaintiff’s theory that merely intercepting data with the intent to analyze it later is an “attempt to learn” while in transit, cautioning that this reading would collapse Section 631(a) into Section 632 (CIPA’s “recording device” provision).

But the heart of the court’s analysis concerned the rule of lenity, which Judge Chhabria cited as a key reason for not adopting the plaintiff’s broader interpretation of CIPA’s “in transit” language. He began by lamenting CIPA’s “badly drafted” text and the current state of litigation under it. Order at 6. He also noted that, when courts are called upon to apply CIPA’s “obtuse language” to “new technologies,” “it’s often borderline impossible to determine whether a defendant’s online conduct fits within the language of the statute.” Order at 1; see also id. at 9 (“[T]he statutory language was drafted with very different technology in mind, and it does not map properly onto the internet.”). Because CIPA contains ambiguous language and is a criminal statute, Judge Chhabria agreed with ERC that CIPA should be interpreted narrowly and that any ambiguity should be resolved in the defendants’ favor. Applying that rule, Judge Chhabria granted ERC’s motion for summary judgment, holding that “it would not be appropriate to interpret the ‘in-transit’ requirement of Section 631(a) so broadly as to cover [ERC’s] conduct.” Order at 12. 

Judge Chhabria closed with an appeal to the California legislature: he urged it “to step up” and “bring CIPA into the modern age and to speak clearly about how the kinds of activities at issue in this case should be treated.” Order at 2. But until that happens, he concluded that “courts should generally resolve CIPA’s many ambiguities in favor of” defendants. Id. 

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Judge Chhabria’s invocation of the rule of lenity is a positive result for defendants in website tracking and Pixel cases. The opinion may serve as a template for other courts in employing the rule of lenity to help stem the tide of wiretapping cases filling court dockets and may exert further pressure on the California legislature to clarify their decades-old wiretapping statute.