Most of the “surveillance pricing” news (or “algorithmic pricing,” depending on who you ask) has been about what’s coming. Which states have passed disclosure requirements. Which attorneys general are investigating. And which bills are in committee.

But the class actions have already arrived. The plaintiffs' bar is often first to move, and this is no exception. These class actions will be familiar to anyone tracking the wiretapping litigation wave. The difference, though, is that they overlay deceptive pricing allegations, pulling from another hot area of litigation and potentially compounding exposure.

Wiretapping and Deceptive Pricing Converge

The surveillance pricing lawsuit sits at the intersection of two of the most active areas of consumer class action litigation: wiretapping claims based on website tracking technologies, and deceptive pricing claims under state UDAP statutes.

The basic template draws heavily from both playbooks.

The tracking allegations. A company deploys tracking technologies on its website: pixels, SDKs, cookies, session replay tools. Those technologies capture a consumer’s visits, clicks, navigation, search activity, device information, and session behavior, and share that data with third parties. These are the exact same technologies behind wiretapping class actions.

The pricing allegations. Separately, the company works with third-party vendors that use algorithms to analyze demand, buyer behavior, and market conditions in real time, and to set or adjust prices for individual users based on that analysis. The tracking data, the complaint alleges, feeds into the pricing engine, and the result is individualized prices designed to maximize what each consumer will pay (that price, it will often go unsaid, could be higher or lower than what the consumer would have otherwise been offered).

The privacy policy. The complaint alleges that the company does not disclose that tracking data is used to set pricing, that trackers feed behavioral analytics used for dynamic pricing, or that consumer data is shared with third parties for pricing purposes. The privacy policy only discloses standard uses, such as analytics, advertising, and service providers, but not surveillance pricing.

Why Not Just a Wiretapping Case?

If this were only about tracking technologies collecting consumer data and sharing it with third parties without consent, it would be a typical wiretapping case. Plaintiffs have been filing those for years under CIPA in California and, increasingly, under the ECPA, nationwide.

But the surveillance pricing complaint goes further.

The ECPA and the crime-tort exception. The fulcrum of the nationwide claim is the Electronic Communications Privacy Act (ECPA). The ECPA is a one-party consent statute; that means, ordinarily, if the website operator consents to the tracking, there is no violation. But the ECPA has a crime-tort exception: consent is ineffective if the communication is intercepted “for the purpose of committing any criminal or tortious act.” 18 U.S.C. § 2511(2)(d).

As we have written, recent decisions have applied this exception to override the one-party consent defense in tracking-technology cases, and the split over the exception’s scope remains unresolved. The surveillance pricing complaint tries a different route.

The predicate tort or crime in the surveillance pricing complaint is wire fraud, based on the theory that the company’s privacy policy contains material misrepresentations and omissions about how consumer data is used. The privacy policy says data is collected for analytics and advertising while omitting that the data is collected to set individualized prices. That omission, according to the plaintiff, is a fraudulent scheme executed over interstate wires.

If a court accepts that theory, it transforms privacy policies into a potential predicate for a federal wiretapping claim, with nationwide class applicability and statutory damages, under the ECPA, of the greater of $100 per day or $10,000 per violation.

State UDAP claims. Alongside the ECPA claim, the surveillance pricing complaint asserts violations of state deceptive trade practices statutes. The theory is that the privacy policy’s failure to disclose surveillance pricing constitutes a material misrepresentation—a deceptive act or practice—that injures consumers. These claims carry their own damages and can support both statewide and nationwide classes depending on the jurisdiction.

Unlawful selling practices. The surveillance pricing complaint might also assert claims based on pricing-specific laws, such as statutes prohibiting bait-and-switch pricing (offering a product at one price with the intent not to sell it at that price). The theory: the company advertises a price, but if the consumer does not transact immediately, the price changes based on the consumer’s personal data. The advertised price, in other words, was never really the price. This should ring some bells. It’s the same theory behind the ongoing wave of strikethrough pricing lawsuits.

The Theories of Harm, And What’s Missing

The alleged harms will sound familiar to anyone defending wiretapping cases:

• The collection of sensitive personal data is itself an injury.

• The consumer lost the value of their data, which was shared without compensation.

• The data was disclosed to unauthorized third parties without consent.

• The company profited from the collection and use of data that consumers did not agree to surrender for this purpose (unjust enrichment).

What is notably absent, at least so far, is an allegation that the consumer paid more than they would have paid absent surveillance pricing. Namely, there is no claim of a financial injury tied to an inflated price. This is a significant gap, and it sets up familiar fights over Article III standing. If the harm is the data collection itself, not the price, then these cases will face the same standing challenges that have defined wiretapping litigation for the past several years. 

What This Means

Surveillance pricing class actions are a natural evolution. Plaintiffs’ counsel have spent years refining wiretapping theories around tracking technologies. They have also spent years refining deceptive pricing theories under UDAP statutes and pricing-related laws.

The surveillance pricing complaint merges the two, and the ECPA’s crime-tort exception gives that combined theory nationwide reach. It is also industry agnostic. While surveillance pricing legislation has largely focused on particular industries, the class action template is replicable across industries. The first step for any company uses a form of data-driven or algorithmic pricing should be to review its privacy policy—the core vulnerability here.