PRIVACY AND CYBER
PREDICTIONS FOR 2026
2025 PREDICTIONS RECAP
Wiretapping Litigation Wave Will Keep Churning We expect the plaintiffs’ bar to continue the wave of wiretapping and related claims against businesses relating to the use of tracking technology on company websites. While this trend began primarily in California, it has already expanded to other states. We anticipate that it will continue to do so, unless or until state legislatures or courts directly address the application of wiretapping and other long-standing laws that were intended for other purposes to the use of tracking technology on websites. States Will March Forward With Their Own Privacy Rules, Adding to Patchwork We expect to see continued proliferation of privacy laws at the state level. To date, 19 states have passed consumer privacy laws. Other state lawmakers have been considering similar legislation, and we believe more
We thought we’d see a renewed push for a federal privacy law in 2025 with Republicans in control of Congress, aiming to supersede the patchwork of state laws and reduce the administrative burden of compliance (particularly for broad laws like California’s). But Congress failed to meaningfully consider any sort of comprehensive privacy law (such as the stalled American Privacy Rights Act). We Didn’t See a Skimpy Federal Privacy Law Absent federal action to update standards to address the privacy concerns that arise from artificial intelligence technology, we correctly predicted that states would continue to be on the forefront of new consumer privacy laws. For example, California adopted regulations this year that protect against AI-fueled employment discrimination. And Maryland’s Online Data Privacy Act now requires certain businesses to follow strict consumer privacy rules. Read more about other state privacy laws that took effect in 2025. State Laws Continued to Proliferate As we predicted, the ongoing trend of wiretapping and related claims filed against businesses that use third-party cookies, pixels, and other tracking technology continued in stride throughout 2025. We saw more decisions addressing the issue of the application of state wiretapping laws to the use of tracking technologies. In March, we saw a Florida federal judge’s decision that said a healthcare organization’s website tracking technologies and chatbots violated the Florida Security of Communications Act by intercepting internet communications without consent. And in September, a California federal court dismissed a proposed class action suit for failing to allege any specific, concrete harm stemming from the company’s use of standard website data collection software. Check out FP’s Digital Wiretapping Litigation Map to get a full lay of the land. Plaintiffs Continued to Get Creative
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states will pass legislation in the next year. Don’t Bet on the Feds to Act
At the federal level, although there is bipartisan interest in passing consumer privacy legislation, we don’t expect Congress to reach agreement on the terms of a potential law in 2026. The same issues that have defeated similar legislation in the past – the scope of pre-emption and whether to include a private right of action – are likely to be impediments to passage of any new legislation, at least in the near future.
Risa B. Boerner, CIPP/US, CIPM Philadelphia Partner, Co-Chair
OUR PREDICTIONS WERE MOSTLY RIGHT
HOW DID WE DO?
Usama Kahf, CIPP/US Irvine Partner, Co-Chair
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