Arizona Court of Appeals Affirms Dismissal of Arizona “Spy Pixel” Class Action

We advised last year that plaintiffs had initiated a new wave of CIPA-like privacy litigation under Arizona’s Telephone, Utility and Communication Service Records Act, A.R.S. § 44-1376.01 (the “TUCSRA”). We are now pleased to report that the Arizona Court of Appeals has rebuffed that wave, which should subside as a result.¹

As we previously reported, various plaintiffs had filed putative class actions in Arizona and elsewhere, alleging that marketing emails with tracking pixels violated the TUCSRA, a 2007 law governing the protection/disclosure of “communication service records, telephone records [, and] public utility records.” Plaintiffs argued, among other things, that tracking pixels in marketing emails were “communication service records” because the sender would know when a recipient accessed the email, thereby creating an “access log.”

This was a novel theory that had arisen with the past couple of years and gave plaintiffs some new ammunition in tracking-pixel litigation similar to recent CIPA class actions. Trial courts were skeptical and largely rejected the theory, but no appellate decision had directly addressed the issue. 

Last week, however, in the first such decision, the Arizona Court of Appeals held in Smith v. Target Corp., No. 1 CA-CV 25-0120, --- P.3d ----, 2025 WL 3166035 (Nov. 13, 2025), that the TUCSRA simply does not apply to tracking pixels in marketing emails. And, as a result, the Court affirmed the Superior Court’s dismissal of the plaintiff’s claims.

In reaching that result, the Court explained that the TUCSRA emerged from two prior laws enacted in 2000 and 2006,²  and that all three laws were clearly intended to regulate “public utility records, telephone records, communication service records” controlled by service providers that “send or receive oral, wire or electronic communications or computer services.” Agreeing with the Superior Court’s reasoning, as well as two decisions from the U.S. District Court of Arizona,3  the Court of Appeals confirmed that an email sender is not the kind of person or entity that the TUCSRA seeks to regulate, and a tracking pixel is not a “communication service record” as that term is used in the statute. The Court further clarified that the term “access logs” must be read in its statutory context, referring only to “records of when a subscriber accesses the communication services— ‘not marketing metrics collected by retailers about email engagement.’”

Of course, Mr. Smith and his counsel might petition for further review of this decision, but, unless/until the Arizona Supreme Court says otherwise, we expect that the Smith v. Target decision will accelerate resolution of remaining Arizona pixel cases. 

¹Smith v. Target Corp., No. 1 CA-CV 25-0120, --- P.3d ----, 2025 WL 3166035 (Ariz. Ct. App., Nov. 13, 2025).

²A.R.S. §§ 44-1376.01(A)(1) and 13-3001(3). 

³Carbajal v. Home Depot U.S.A., Inc., 2024 WL 5118416 (D. Ariz. Dec. 16, 2024); Williams v. Pac. Sunwear of California LLC, 2025 WL 1135160 (D. Ariz. Apr. 16, 2025).