Wiretap Litigation in 2026: A Massive Opportunity for Plaintiffs’ Attorneys

Over the past few years, wiretap litigation has matured into a robust and fast-growing class action space, but the real story isn’t where wiretap litigation has been. It’s where it’s going.

The trends emerging now point to one clear conclusion: There are enormous, underdeveloped opportunities for plaintiffs’ attorneys in wiretap litigation. The defendants are diversifying. The technologies are evolving. The data is becoming more sensitive. And artificial intelligence is introducing entirely new privacy risks.

Below are four major trends shaping the next wave of opportunity.

1. More Defendants, More Types of Data

The early wave of wiretap cases focused heavily on medical providers, and that space remains active. Hospitals, dental practices, plastic surgery clinics, and other healthcare-adjacent providers continue to embed third-party trackers that allegedly intercept sensitive communications.

But the litigation is expanding well beyond healthcare.

Financial Institutions

Banks, mortgage lenders, fintech platforms, and payday lenders present major opportunities. Financial data is heavily regulated (e.g., under Gramm-Leach-Bliley Act (GLBA), and plaintiffs are increasingly leveraging the federal Wiretap Act’s crime-tort exception to overcome one-party consent defenses.

Financial platforms routinely collect and transmit user data through embedded trackers, often without consumers fully understanding how their activity is shared with advertising or analytics vendors. As courts become more comfortable recognizing the sensitivity of financial data, this space is likely to see major growth in litigation.

Educational Institutions

Universities and educational platforms are another underexplored frontier. Student portals, donor portals, and admissions systems often collect highly sensitive information, yet historically have not been prime litigation targets.

With statutes like the Family Educational Rights and Privacy Act (FERPA) in the background and increasing scrutiny over data sharing, educational institutions represent a potentially significant next wave of defendants.

E-Commerce and “Non-Sensitive” Websites

Perhaps most interestingly, we expect litigation to expand into traditionally “non-sensitive” contexts—such as standard e-commerce websites.

Why?

Because of broken cookie banners.

When users affirmatively opt out of tracking but are tracked anyway, that creates a powerful factual narrative. Courts are beginning to grapple with the implications of failed consent mechanisms. If a website promises users they won’t be tracked - yet tracking continues - that may fundamentally reshape the “reasonable expectation of privacy” analysis.

This shift opens the door to a broader universe of defendants than ever before.

2. Data Brokers and Ad Tech Companies

The next major shift in wiretap litigation won’t just expand the list of defendants, it will move the focus further down the data supply chain, and represents a substantial opportunity for plaintiffs’ firms willing to dig deeper into the technical layer of tracking.

Historically, most cases targeted the website operator embedding the tracker. But the infrastructure behind the scenes; data brokers, ad tech vendors, and real-time bidding (RTB) networks, present even larger opportunities.

Courts are becoming increasingly aware that data collection does not stop at the website itself, and that user activity often feeds vast profiling systems. Cross-context behavioral tracking powers sophisticated advertising ecosystems operating far beyond a single page visit. What may look like a simple analytics tool on the surface can, in reality, serve as an entry point into a much larger data marketplace.

This growing judicial awareness matters. Even when individual data points - such as IP addresses may not appear highly sensitive in isolation, plaintiffs are increasingly arguing, and courts are increasingly acknowledging, that the true invasion lies in the profiling and aggregation process. When data is combined, enriched, and shared across platforms, it creates detailed behavioral profiles that raise far more serious privacy concerns than any single data point alone.

As a result, litigation is likely to shift accordingly. We can expect to see more direct claims against data brokers, closer scrutiny of real-time bidding (RTB) systems, and deeper examination of the backend data flows that fuel digital advertising. Im addition,  mobile ecosystems, which are still comparatively under-litigated, are also poised to receive greater attention as plaintiffs and courts dig further into how cross-device tracking operates in practice.

3. Child and Teen Data: Regulatory Pressure Meets Private Litigation

Another accelerating trend: heightened scrutiny of child and teen data.

Regulators, particularly the Federal Trade Commission (FTC), have made clear that youth data is a priority, and recent settlements and public enforcement actions are setting concrete expectations around disclosure and data handling practices. Although the Children's Online Privacy Protection Act (COPPA) itself does not provide a private right of action, regulatory findings can still play a powerful role in private litigation. They can help establish a de facto standard of care, support parallel state-law claims, strengthen arguments that certain practices are unfair or deceptive, and amplify the overall damages narrative. Children’s data also presents a uniquely compelling factual context for courts. When tracking and profiling occur in spaces marketed to minors, the perceived invasiveness and the judicial sensitivity to it multiplies significantly.

As regulatory investigations surface more facts, private litigation is likely to follow closely behind.

4. Artificial Intelligence: The Emerging Wiretap Frontier

AI may be the most unpredictable yet potentially explosive development in wiretap litigation.

Large language models and embedded chatbots introduce novel questions:

• Are user conversations with AI tools “contents” of communications?
• Is backend data processing an interception?
• Is user data being used for training?
• Are disclosures sufficient?
• Can users meaningfully consent to black-box data processing?

There is an inherent tension between AI systems’ need for massive data inputs and the obligation to protect user privacy. That tension is fertile ground for litigation.

Importantly, AI platforms are already deploying familiar tracking technologies alongside newer data collection mechanisms. In some cases, violations resemble traditional wiretap scenarios, just layered onto conversational interfaces where users reasonably expect privacy.

The conversational nature of chatbots may strengthen plaintiffs’ arguments about subjective expectations of privacy. When users believe they are having a direct, private interaction, unauthorized interception becomes more intuitively problematic.

AI-related wiretap litigation is still early. But the structural incentives make it difficult to imagine it remaining dormant for long.