Does on-line tracking equate to wiretapping violations?

Plaintiff filed lawsuit against on-line marketer for invasion of privacy and violating state’s wiretapping law.  The invasion of privacy claim was dismissed “for failure to state claims for which relief can be granted.”

As for the count on violating state’s wiretapping law, the Court did not dismiss it.  The Court states that it must look at the facts as to whether the device used falls under the definition of the statute.  The Court explains that the “[e]xceptions to (the statute’s) definition of ‘devices’ must be construed narrowly and none of them seemingly apply here.”

The Court also looks at the the definition of electronic communication as per the statute “any transfer of signs, signals, writing, images, sounds, data or intelligence or any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system….”

Finally, the Court looks at consent by stating “[e]ven if a privacy statement discloses some kinds of tracking, a defendant can still be liable for other kinds of tracking that the privacy statement does not disclose.”  The Court further discusses the difference between clickwrap agreements and browserwrap agreements, and the application of the privacy notice to each.  Apparently, “[n]owhere in that section or anywhere else in the Privacy Statement does (defendant) inform online customers that their keystrokes, navigation, and other private information is being collected in real-time by a  third party using embedded code.”  Stay tuned as the case moves forward on state’s wiretap violation.

Best business practice is to have your business’ Privacy Policy either reviewed by an attorney well versed in privacy issues, or drafted by one.  It is crucial to properly inform consumers of the type of tracking the website does and types of information being collected, by whom and how is that information is shared.  Any questions?  Feel free to contact me.

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