Generative AI is quickly changing the economics of litigation. Privacy litigation targeting websites and connected mobile apps has long involved common technologies: cookies, pixels, analytics scripts, session-replay tools, chat widgets, embedded search tools, and advertising tags. As we have previously reported, plaintiff attorneys have targeted these technologies to anchor privacy claims—e.g., analytics tied to online video streaming used to support VPPA claims, search-result transmissions that ground wiretapping claims, and basic visitor analytics alleged to violate CIPA’s prohibitions on pen registers or trap and trace devices.
The lure of these theories is easy to understand. Once a lawsuit identifying a targeted technology and legal hook is filed, it takes relatively little work to replicate it. For plaintiff attorneys, the biggest limiting factor might be finding a client to represent against the targeted company.
Pro se litigation removes that friction point—and AI is filling in the representation gap. A recent New York Times article described how an increasing number of self-represented litigants are using AI tools to generate complaints and other filings, in what the article framed as a supercharging of pro se litigation.
This trend matters for privacy litigation because:
- Pro se plaintiffs do not need to search for clients; they are the client
- Pro se plaintiffs do not need to invent new legal theories; they just need to apply existing theories against targeted businesses
- Pro se plaintiffs are not bound by professional responsibility rules relating to AI
Even where the claims underlying a demand are weak, the threat of AI-assisted litigation can change the cost-benefit analysis for businesses receiving demands.
It’s Happening Now
This is hardly theoretical. For example, numerous news articles have documented the wave of CIPA demand letters, arbitrations, and lawsuits brought by one particularly prolific pro se litigant in California. In many of his demands and lawsuits, this pro se litigant alleges that he visited a website, conducted a search and then used built-in browser tools to determine whether third parties (e.g., Google, HubSpot, Facebook/Meta, or other vendors) receive the search results, which he says “confirms” an alleged interception violating CIPA § 631(a) took place. His more recent demands mirror the wave of CIPA § 638.51 litigation and include a drafted lawsuit ready to file in court based on the use of “pen registers” on a website. The carbon copy nature and sheer amount of these demands and lawsuits strongly indicate they are generated using AI.
Public filings demonstrate the potential litigation costs at issue. In a recent case brought against Pashion Footwear, Inc., this pro se litigant sought to overturn an arbitration decision finding that his CIPA “interception” theory failed to demonstrate a statutory injury that entitled him to damages. While the arbitration dismissal demonstrates the weakness of the legal theories used by many of these pro se litigants, it also shows that contesting them can be pricey: the public filings in the matter show that the parties engaged in substantial litigation and briefing in arbitration before dismissal.
In yet another case, a defendant moved to have this same pro se litigant declared a vexatious litigant. The litigant filed a 12-page opposition to that motion, complete with legal citations and exhibits, less than 24 hours later. Two years ago that would be an impossibly quick turnaround time, particularly for a self-represented litigant; nowadays – with the help of generative AI – it is commonplace and shows that pro se parties can effortlessly keep pace with litigation filings.
What’s a Business to Do?
The rise—and continued growth—of AI-powered pro se litigation underscores the critical importance of understanding the technology deployed on your website, the litigation risks posed by that technology, and the content of any visitor-facing terms, policies, or banners.
As we’ve recently discussed, there is significant value to auditing your website technology—both to understand what it does and how it works, and to identify whether any tech deployed to your site is actively being targeted by law firms or pro se litigants. Engaging in this practice is the best way to both assess your compliance with any applicable laws and to evaluate whether you are unwittingly inviting litigation demands from the growing class of AI-driven pro se plaintiffs.
A review of your arbitration clause may also be in order. Many pro se litigants specifically target entities with arbitration clauses (likely because litigating by AI is easier behind the closed doors of arbitration and because businesses have to pay most arbitration fees – which may increase settlement pressure). Businesses should carefully consider their arbitration posture before a claim is filed.