Everyone is free to sign on to all the information, services and diversions offered on the Internet. The convenience of shopping or searching for travel information on the Internet costs nothing in cash payments. The real cost comes in selling a portion of your privacy so that a website can target your interests and sell you more goods or services. One of the tools used to monitor consumer behavior is session replay software. This type of software records the actions of a consumer on a website or mobile application in real time and records every keystroke, mouse movement, click or scrolling action. An individual’s movements can be replayed, or the information of multiple consumers can be consolidated to detect consumer interests or preferences. Many view this commercial activity as an invasion of privacy. In the recent past, litigation alleging breach of state privacy statutes by session replay software has proliferated in several states. This article will review how two courts have analyzed the applicability of privacy statutes when class action claims are brought against companies using session replay software.
In Javier v. Assurance IQ, 2021 U.S. Dist. LEXIS 158236 (N.D. Cal. 2021) the defendant was a website that collected personal information about the individual user to create a personalized insurance plan using data analytics. The software surreptitiously recorded the user’s actions on the Assurance website. The plaintiff in this case asserted that his privacy was violated by the use of session replay software. This class action asserted that such activity was a violation of the California Invasion of Privacy Act (CIPA), Cal. Penal Code §631, and the California Constitution.
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