Court Raises Bar on Consent Proof in Tracking Device Lawsuits
A federal court requires stronger evidence of consent in tracking device lawsuits, beyond denial alone.
Why it matters: Legal and compliance professionals must ensure robust consent documentation to address stricter judicial standards in privacy cases involving tracking technologies, avoiding risks in litigation and compliance.
- In Doe v. Adventist Health System/West (Aug 24, 2026), the court reversed denial of class certification over insufficient common evidence of consent.
- The Ninth Circuit ruled in Oct 2023 that continued app use after updated terms indicates consent, even without reading new terms.
- In Adair v. Cigna (2022), courts found consent to tracking via agreement to Terms of Use and Privacy Notices.
- Verizon was fined $46.9 million in 2023 for selling location data without consent, illustrating regulatory enforcement.
A U.S. District Court in Doe v. Adventist Health System/West ruled on Aug. 24, 2026, that plaintiffs seeking class certification in tracking device lawsuits must present more than denials of consent. The court reversed an earlier decision denying certification, noting plaintiffs provided insufficient common evidence regarding consent.
This decision reflects growing judicial insistence on concrete proof of consent in privacy and wiretapping claims, signaling that legal teams should anticipate closer scrutiny of consent records when defending or prosecuting such cases.
Complementing this, the Ninth Circuit held in October 2023 that a user's continued use of an app after updated terms-of-service triggered implied consent, even if the user did not read the new terms, as reported by TechSpot. This ruling enables organizations to rely on ongoing user engagement post-update as evidence of consent.
Earlier case law supports this framework. In Adair v. Cigna (2022), the court found plaintiffs had consented to tracking technologies by agreeing to the company's Terms of Use and Privacy Notice.
Regulators mirror this stricter approach. In 2023, Verizon faced a $46.9 million penalty for selling customer location data without consent, emphasizing compliance risks associated with consent management failures.
Legal and compliance teams should prioritize documenting clear consent processes and regularly review updates to terms and privacy notices to manage litigation and regulatory risk.
By the numbers:
- $46.9 million — Verizon's fine for unauthorized sale of location data (2023)
- Oct 2023 — Ninth Circuit ruling on implied consent via continued app use
- Aug 24, 2026 — Doe v. Adventist Health System/West ruling on consent evidence