Heath and health-adjacent websites, from home pregnancy test companies to eyewear companies, continue to be a target for wiretapping lawsuits if they use pixels or other common-place third-party technologies.  A Texas federal court recently dismissed one such suit challenging the use of website pixels by Eyemart Express, LLC, a company selling prescription and non-prescription eyewear.  Rand v. Eyemart Express, LLC, No. 3:24-CV-621-N, 2025 WL 1519726 (N.D. Tex. May 27, 2025).

Five named plaintiffs, who allegedly visited Eyemart’s website, claimed that Eyemart used website pixels to track their interaction “events” on the website, including the items they added to a digital cart, and then shared that data with the pixel provider.  Plaintiffs claimed that the pixels intercepted their private health information (“PHI”) in violation of the Federal Electronic Communications Privacy Act, the Missouri Wiretap Act, and the Illinois Eavesdropping Statute. 

The Court granted Eyemart’s motion to dismiss for failure to state a claim and dismissed all of the plaintiffs’ claims with prejudice.

The Court first concluded that three named plaintiffs failed to plead facts plausibly establishing that they shared any PHI with Eyemart that could have been shared with the pixel provider.  The Court explained that these plaintiffs had alleged only a subjective intent to visit the website (e.g., to purchase prescription eyewear or nonprescription sunglasses), and that this was insufficient to allege that they shared PHI. 

The Court next concluded that the other two named plaintiffs failed to plead that their PHI was disclosed to the pixel provider.  Although these plaintiffs had alleged they shared their PHI with Eyemart, the Court found they had not alleged this information was captured by the pixel.  The Court also dismissed plaintiffs’ wiretap act claims based on the one-party consent exception to the statutes at issue and plaintiffs’ failure to allege an independent crime or tort to invoke an exception to that rule.