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).
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