WARNING: Web Tracking Might Expose Businesses to Wiretapping Lawsuits

News Feb 19, 2021 Fort Lauderdale, FL

By Jeffrey A. Backman, Esq. & Gregg I. Strock, Esq.

Imagine this. A consumer goes to your website to buy your goods or services. Your website works great, thanks in part to a small bit of code your company licenses that allows you to track a consumer’s experience on your website, commonly called “session replay” software. Mouse clicks, page scrolling, and even key strokes can all be tracked and recreated. These session replays allow your business to identify and correct bugs and issues that negatively affect a user’s web experience. The consumer browses your site, completes the purchase, and happily exits the web browser. That should be the end of the story…but it may not be that simple.

A few weeks later you’re being served with a class action lawsuit alleging violations of the Federal Wiretap Act and/or analogous State statutes, such as the Florida Security of Communications Act (“FCSA”) or California Penal Code § 631, or consumer protection statutes such as the California Information of Privacy Act (“CIPA”). According to the new trend created by class action attorneys, tracking a consumers web experience, they say, amounts to an illegal “interception” of electronic “communications.” The lawsuits attempt to compare web tracking and session replay to wiretapping, like when law enforcement officials listen in on the private conversations of supposed criminals. But that’s ridiculous, right? There’s no way your company is on the hook for illegally “eavesdropping” by tracking mouse clicks and key strokes on its own website, is it? While many of the laws involved are decades old, this application of them is relatively new and hasn’t been decided by the courts. More importantly, the statutory damages being sought puts a defendant named in one of these lawsuits under immense pressure to settle rather than fight.

There is a term for that, coined by the U.S. Senate when it enacted the Class Action Fairness Act of 2005: “judicial extortion.”[1] And it’s one of the reasons the Telephone Consumer Protection Act (“TCPA”) has become such a popular statute for class action attorneys. As one Senator has put it, “The sheer cost of modern litigation, on time, on emotions and on financial resources of the parties involved has become a leveraging opportunity for those who wish to make a quick buck[.]”[2] The TCPA, passed in 1991, remained relatively obscure for nearly two decades before it overran federal courts. Now, thanks to a series of 2017 and 2018 blog posts by a privacy watchdog that identified nearly 100,000 of the most visited websites on the internet, these wiretap and session replay lawsuits appear to be making a push to become the plaintiffs bar’s new TCPA. Whether the claims will succeed, however, is yet to be seen.

[1] S. REP. 109-14, 20, 2005 U.S.C.C.A.N. 3, 21.

[2] Tim Ryan, Senators Debate New Rules for Curbing Frivolous Lawsuits, Courthouse News Service (Nov. 8, 2017) https://www.courthousenews.com/senators-debate-new-rules-curbing-frivolous-lawsuits/ (quoting Sen. Chuck Grassley, R-Iowa).

About Greenspoon Marder

Greenspoon Marder is a national full-service business law firm with over 200 attorneys and offices across the United States. We are ranked among American Lawyer’s Am Law 200, as one of the top law firms in the U.S. since 2015. Our firm was founded with the goal of providing the highest quality legal services at the highest value for our clients. Each of our clients is unique and so are their legal needs. We believe no one size fits all for professional services. Our lawyers offer flexible and creative solutions to meet our clients’ respective needs. Our mission is to understand the challenges our clients face, build collaborative relationships and craft solutions with a focus on strategic goals.

MEDIA CONTACT
Natalie Villanueva, Director of Marketing
954.333.4308 | natalie.villanueva@gmlaw.com

This Greenspoon Marder LLP Client Alert is issued for informational purposes only and is not intended to be construed or used as general legal advice nor a solicitation of any type. Please contact the author(s) or your Greenspoon Marder LLP contact if you have any questions regarding the currency of this information. The hiring of a lawyer is an important decision. Before you decide, ask for written information about the lawyer’s legal qualifications and experience.

Next Previous

Subscribe for
News & Events

Search By Author

Search By Practice Area

Search By State

News

WARNING: Web Tracking Might Expose Businesses to Wiretapping Lawsuits

Share

Subscribe for News & Events

News & Events

News & Events

Subscribe for
News & Events