Recall that session replay software captures certain aspects of a user’s interactions on web applications (mouse movements, clicks, typing, etc.) along with underlying contextual user data to help website operators enhance users’ experiences. Accordingly, session replay software allows a website operator to recreate (or “replay”) a visitor’s journey on a web site or within a mobile application or web application. Rather than focusing on user activity after leaving a particular website, session replay software concerns how a user interacts with a specific website. Creative plaintiffs lawyers have filed dozens of putative class action litigations this year alleging that a website operator’s use of session replay software violates certain state wiretap acts—including those of California and Florida. This is because a minority of states have all-party consent wiretap laws (requiring all parties to a conversation or interaction to consent to a recording). Plaintiffs in these cases have alleged that because they did not affirmatively consent to the defendant’s use of the session replay software, the website operator has violated the applicable state’s wiretap law.
Based on the principle that “consent is generally limited to the specific conduct authorized,” this ruling may encourage website hosts and online entities to write their policies as broadly as possible to give themselves legroom to argue that their visitors had consented. For more on this, stay tuned—CPW will be there to keep you in the loop.