Why Testing Cookies Matters More Than Ever

To be clear, taste-testing cookies is rarely a bad idea. In this case, unfortunately, we're referring to the digital kind.

If you still think of CCPA as “just a notice-and-link law,” the latest wave of cookie and tracking lawsuits should change your mind fast. Plaintiffs are increasingly treating California privacy statutes as baseline tools that reshape what counts as a reasonable expectation of privacy online, even when the statute technically doesn’t give consumers a broad private right of action in most privacy cases (except in a data breach situation).

At the center of that shift are deceptively simple implementation details: your cookie banner, your consent controls, and whether your site does in fact do what it tells users it will do.

How California Set the Stage for Cookie Litigation

The California Consumer Privacy Act (CCPA), as amended by the California Privacy Rights Act (CPRA), gives California residents rights to e.g., know, amend, or delete data, and to opt out of the sale or sharing of their personal information, and treats identifiers like cookies, IP addresses, and browsing history as “personal information.”

Even though the CCPA’s express private right of action is limited to certain data breaches, plaintiffs’ lawyers now routinely use CCPA concepts—especially around “sale,” “sharing,” and cross-context behavioral advertising—and other laws like the California Invasion of Privacy Act (CIPA) to frame privacy and unfair practices claims against businesses.

California’s Attorney General (AG) and the California Privacy Protection Agency (CPPA) have also provided guidance that, while not binding like the statute, shapes what courts see as “reasonable” privacy expectations online. These materials emphasize transparency, meaningful optout mechanisms, and clear choices when data is used for targeted advertising or profiling. That backdrop matters when courts decide if a consumer’s expectations around cookies and tracking are reasonable.

Shah v. MyFitnessPal

In Shah v. MyFitnessPal (N.D. Cal.), users claimed the app placed tracking cookies and collected data even after they tried to reject cookies via the opt-out controls. Among other theories, plaintiffs brought common law invasion of privacy and intrusion upon seclusion claims based on unconsented tracking.

The court allowed those claims to move forward (though rejecting other claims), treating the alleged disregard of cookie preferences as a meaningful privacy intrusion rather than a mere technical glitch or contract issue.

Here’s the twist: the court referenced the CCPA and the California AG’s explanation of cross-context behavioral advertising to support the idea that Californians reasonably expect some control over data collection for profit. In other words, CCPA’s framework helped define what “reasonable expectations of privacy” look like, even though the statute itself disclaims broad privacy-based private rights of action.

Commentators have flagged this as an attempted de facto “workaround” i.e., the CCPA becomes a norm-shaping tool that boosts common law privacy claims, potentially expanding litigation exposure for tracking, pixels, and cookies that ignore user choices.

The Expansion of CCPA Liability Through Tracking Cases

Several recent actions and commentaries show an increasing willingness to apply the CCPA’s data breach private right of action plus privacy concepts to a broader range of disclosures and tracking technologies. That includes embedded third-party tools, session replay software, and pixels that transmit user interactions to vendors.

While some courts have pushed back, others have accepted that session replay tools can capture “contents” of communications for wiretap purposes, raising the stakes for how such tools are implemented and disclosed.

CCPA, CIPA, and other state laws

California’s Invasion of Privacy Act (CIPA) has become a favorite hook for plaintiffs targeting website tracking, often in tandem with CCPA concepts. KR Law notes that CIPA, unlike CCPA’s core provisions, offers its own private right of action and powerful statutory damages, making it an attractive vehicle when plaintiffs try to shake down businesses by alleging “wiretap” style interception via pixels, chatbots, or session replay tools.

There are also now comprehensive consumer data privacy laws in dozens of U.S. states, as well as additional sector/topic specific state privacy laws, state data breach laws in each state, and a variety of federal privacy laws covering different issues. Although there is some overlap in state privacy laws, there are also meaningful distinctions.

This patchwork means a single misconfigured cookie banner or tracking script can trigger overlapping theories: for example, CCPA informed privacy expectations, CIPA interception claims, and even more traditional intrusion and unjust enrichment counts.

Cookie Compliance Under CCPA

While the CCPA does not traditionally require EU-style opt-in consent for cookies (absent certain thresholds such as under 16 years old or sensitive data), more robust and even opt-in consent is becoming more common to mitigate risks; and the law does require transparency, a “notice at collection” including to cover cookie-based practices, robust “Do Not Sell or Share My Personal Information” or “Your Privacy Choices” mechanisms. If cookies collect personal information that is sold or shared for cross-context behavioral advertising, notice and opt-out tools need to address that use case as well.

A compliant implementation typically involves clear disclosure of cookie categories and purposes, links to a detailed and accurate privacy policy, and accessible opt-out paths (including honoring global opt-out preference signals where required).

Common mistakes that turn into lawsuits

The biggest operational failures are often deceptively small:

• Firing analytics or advertising cookies before the user can meaningfully opt out.

• Failing to respect “reject” or “save preferences” actions in the banner, so tracking continues regardless.

• Describing cookies generically while they actually support different uses such as cross-site advertising, session replay, or sensitive user profiles.

• Not syncing cookie behavior with privacy policies or other privacy representations, leading to gaps plaintiffs can seize on.

Our privacy and CCPA attorneys stress that keeping notices, internal practices, and technical implementations aligned is essential to reducing litigation risk.

Rigorous Cookie Testing Is a Tool for Risk Control

From a defense litigator’s perspective, the worst thing a site can do is promise meaningful cookie choice and then ignore it in practice. That’s exactly the fact pattern in Shah v. MyFitnessPal: the alleged mismatch between the interface and the underlying tracking made it easier for plaintiffs to argue a knowing invasion of privacy.

Testing should therefore mirror how a regulator or plaintiffs’ experts would approach the site: inspecting network calls, verifying which cookies fire under different choices, and documenting that “reject” truly means “no tracking” beyond what is strictly necessary for the service (and updating privacy representations accordingly).

Practical elements of cookie testing

A defensible testing program typically includes:

• Regular audits of all first and third-party cookies, tags, pixels, and SDKs across web and mobile.

• Scenario-based testing (new user, returning user, different browsers, mobile vs. desktop) to confirm the banner and preferences behave consistently.

• Validation that “Do Not Sell or Share” choices and global privacy controls are honored at the technical level, not just in policy language.

• Coordination between engineering, marketing, and legal so changes in ad tech or analytics stacks trigger privacy review.

Businesses should treat privacy compliance as an ongoing lifecycle—continuous monitoring and adjustment, not a one-off policy exercise—as state privacy regimes continue to evolve.

Navigating Privacy Laws, Cookies, and Litigation Risk

To reduce the chance of becoming the next litigation headline, businesses should:

• Map all data flows including those involving cookies and trackers, and including third-party integrations and session-replay or chat tools.

• Update privacy policies and cookie notices to accurately reflect current practices and CCPA requirements, with clear links from cookie banners to those sections.

• Design consent and optout interfaces that are easy to understand, consistent across pages, and tested regularly to confirm they work as advertised.

Our firm's CCPA, CIPA, and other privacy resources can help in crafting policies and risk minimizing strategies tailored to these overlapping privacy frameworks.

Cookie Testing as a Litigation Defense

While the CCPA may have started as a disclosure heavy, “rights based” privacy law, there is now attention to using CCPA privacy concepts to shape common law privacy expectations and to evaluate whether unconsented tracking crosses the line. Shah v. MyFitnessPal shows how a misaligned cookie banner can become the launchpad for invasion of privacy claims, with CCPA functioning as a powerful background norm, even when the statute’s own private right of action is limited.

In this era of online privacy law, rigorous and repeatable testing of your cookie implementations is not just a UX best practice; it is a central part of your legal defense strategy. By making sure your site actually honors the choices it offers, and by keeping your policies, interfaces, and code in sync, you reduce both regulatory risk and the odds of being the next test case in the evolving story of CCPA privacy law and the growing list of U.S. privacy law standards.

FAQs

Does CCPA require opt-in consent for all cookies?

No. The CCPA generally does not require opt-in consent for cookies, except in special cases like minors’ data for users under a certain age or for sensitive data, but it does require clear disclosure and robust opt-out rights for any data sale or sharing. There are also numerous other state privacy laws along with industry federal laws that need to be considered, and opt-in consent for cookies is an evolving standard and best practice.

How did Shah v. MyFitnessPal change cookie risks?

The case illustrates that courts are turning to CCPA concepts to support common law privacy claims when a site appears to ignore users’ cookie choices, expanding litigation risk under the CCPA’s damages provisions beyond pure data breach scenarios.

What is the connection between CCPA and CIPA in tracking lawsuits?

Plaintiffs often pair CCPA informed privacy expectations with CIPA wiretap theories, arguing that pixels or session replay tools “intercept” communications, leveraging CIPA’s separate private right of action and statutory damages. These are evolving issues.

Why is cookie testing so important for compliance?

Because courts and regulators (and plaintiffs and claimants) look at what your site actually does, not just what your privacy policy says. Testing validates that your cookies and trackers behave consistently with your notices and user choices.

Where can businesses get help drafting compliant privacy policies?

Privacy law firms offer privacy policy drafting and strategy services focused on CCPA, CIPA, and other state and federal privacy laws, as part of overall data privacy and security legal compliance services, helping align documentation with real world data practices. Contact our team today to get started.