Readers of this blog are well aware of the uptick in consumer privacy claims surrounding the online use of session replay and other similar tracking technology. Allegedly aggrieved consumers typically claim that the use of session replay software allows third parties to illegally eavesdrop and wiretap their communications while visiting websites without their consent. In a recent decision from the United States Court of Appeals for the Third Circuit (“Third Circuit”), the Court reviewed a district court’s dismissal of claims that the use of session replay software violated various federal and state privacy laws. Below, we discuss the decision in detail.
The Third Circuit’s Session Replay Decision
Our readers know that session replay software is website embedded code that tracks online visitors’ interactions while navigating a given website. In the case at issue, eight plaintiffs asserted state and federal wiretapping claims against two outdoor product retailers alleging that they embedded third-party session replay code on their websites for purposes ofintercepting: (1) mouse movements; (2) clicks; (3) scrolls; (4) zooms; (5) window resizes; and (6) text entries. After the district court dismissed the wiretapping claims for lack of standing, plaintiffs appealed to the Third Circuit.
On appeal, the Third Circuit reviewed whether any of the eight plaintiffs had sufficiently alleged injury in fact such that they could demonstrate Article III standing. In its decision, the Third Circuit ruled that six of the eight plaintiffs lacked standing because they had not made purchases on the defendants’ websites and thus, the session replay software did not capture sensitive information. Because the session replay code only captured mouse clicks, movements, keystrokes, and non-sensitive information, the Third Circuit affirmed the district court’s dismissal for lack of standing. Two other plaintiffs, however, did make purchases and entered their names, addresses, and payment and billing information on the websites. By alleging that the session replay code captured these plaintiffs’ payment and billing information, the Third Circuit determined that “the harm resulting from its nonconsensual interception and examination closely resembles the same interests implicated in the traditional common law cause of action intrusion upon seclusion.” As a result, the Third Circuit ruled that the two purchaser plaintiffs demonstrated that they had standing, and reversed the district court’s dismissal of their wiretapping claims.
If You Use Session Replay Software on Your Website, Contact KMT Immediately!
If your company employs session replay software to track consumer interactions on your website, it is imperative that you take a hard look at: (1) your data collection technology and practices; (2) when and how consent to collect and use such consumer data is obtained; and (3) with whom you share this information.
Determining whether you are complying with state and federal privacy laws requires hiring experienced counsel.
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