# Tracking pixel lawsuits: how the party exception works under the Wiretap Act and state law

## Where readings differ

| Reading | What it holds | What it relies on | What it means for a design |
| --- | --- | --- | --- |
| Reading 1, on the site operator | The operator receives its own visitors’ communications as a party. The claimant still needs evidence of a criminal or tortious purpose beyond the act of interception. | [18 U.S.C. § 2511(2)(d)](https://www.law.cornell.edu/uscode/text/18/2511) and [Sweat, pp. 7–16](https://blogs.duanemorris.com/classactiondefense/wp-content/uploads/sites/56/2025/09/Sweat-v.-Houston-Methodist-Hospital-Opinion.pdf) | The design records who receives the original request and the aim of each tag. |
| Reading 2, on the site operator | The operator’s goal can include disclosure of identifiable health information for a purpose independently alleged to violate another duty. On that reading, the party argument turns on evidence of the disclosure and its purpose. | [18 U.S.C. § 2511(2)(d)](https://www.law.cornell.edu/uscode/text/18/2511) and the distinction between interception and intended disclosure | The design identifies each disclosed field and the downstream operation for which it was sent. |
| Reading 3, on the vendor | A vendor using copied requests for its own purposes can be a separate recipient rather than a party to the site communication. | {V04d:In re Facebook Internet Tracking Litigation, pp. 24–29} and evidence of duplicated transmission | The design records own-use rights, duplicate requests and downstream destinations. |
| Reading 4, on the vendor | A vendor that acts only as the site’s recording tool can argue that its receipt belongs to the site’s side of the exchange. Actual function and the applicable statute matter. | The party language in [18 U.S.C. § 2511(2)(d)](https://www.law.cornell.edu/uscode/text/18/2511) and evidence about the site’s control | The design separates storage for the operator from any use for the vendor’s products. |

**Where the readings collide.** The dispute can concern whether disclosure supplies an independent purpose, whether the vendor participated in the original communication and which transmissions required prior consent. The governing statute may define the covered communication or device differently. Evidence about reuse or duplication bears on different arguments for the site and the vendor.

## Questions to take to your counsel

1. Which statutes and forums are realistic for our sites and users?
2. On our evidence, what was the purpose of each tag, and how is that documented?
3. Did users consent before the first transmission, and to what words?
4. Does any vendor have the right to use the data for its own purposes?
5. Do our terms include enforceable arbitration and class-waiver clauses for these claims?
6. What must we preserve now, and what may we delete?
7. How do insurance and vendor indemnities respond?

[Read the full checkpoint](https://adsovereign.com/blog/tracking-pixel-wiretap-party-exception) · [CC BY 4.0](https://creativecommons.org/licenses/by/4.0/)