Over the last few months, a wave of consumers have filed putative class action complaints against a long list of consumer-facing website owners/operators and their software providers alleging invasion of privacy rights under statutes focused on wiretapping and eavesdropping.
Our team has represented both website and software defendants in these cases. However, this post is not intended to reflect on any specific claim, website, or software. Rather, our goal is to provide an introduction to the general nature of the consumer claims and current landscape of these litigations.
This post summarizes (1) the “session replay” technology at issue in these claims; (2) arguments presented by the Complaints; (3) an overview of common defenses; and (4) where things stand. With that context, we then provide our list of practical considerations for the use of session replay software.
What is “Session Replay” Software?
Despite how these products are often described, the software does not actually record the consumer’s session in the way that a security camera in a brick-and-mortar store would capture a consumer’s movements. Rather it captures the consumer’s interactions with the website at regular intervals and allows those movements and data points to be laid over an existing image of the website so that owners/operators can review a recreation (or dramatization) of an individual consumer’s experience.
Continue Reading Privacy Litigation Trend: The Latest on Session Replay Lawsuits, and Practical Considerations for Risk Mitigation