Travel companies including Spirit
and Jetblue airlines and Carnival Corporation are among the brands hit recently
with class action lawsuits related to consumer privacy issues.
The filings focus on the
companies’ use of session replay software that records a user’s actions - such
as keystrokes, clicks and pages viewed - on a website or mobile app and transforms that information into a recorded reproduction of the user's experience.
The data is intended to help brands see and
learn from user activity on their sites, to understand engagement and to determine
how to make improvements.
But plaintiffs – in the cases against Spirit,
Jetblue and Carnival as well as other B2C brands such as Ulta, Bloomingdale’s
and Adidas - allege the data is being captured without user consent and in
violation of wiretapping laws.
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“Since Labor Day, there have
been dozens of these lawsuits filed,” says Samantha Southall, an attorney at
Buchanan Ingersoll & Rooney who co-authored, “Session-Replay
Software and Chat Wiretapping Lawsuits: A New Wave of Litigation for Companies
With an Online Presence.”
“Wiretap laws you think of as
police listening to potential suspects or somebody impermissibly taping a phone
call, but nothing like this. So it’s a bit of a square peg in a round hole. The
law doesn’t always keep up with the technology, so creative plaintiff's attorneys
look for ways to bend the law a bit and find old laws to create new claims.”
JetBlue and Spirit did not
respond to PhocusWire’s request for comment, while Carnival Corporation said that it generally does not comment on active litigation.
Litigation attorney Michael
Bahar, a partner at Eversheds Sutherland, says these lawsuits are like a “tidal
wave hitting the shore and only going to grow,” so they may enhance awareness and
use of disclosures and consent.
“I’m very confident most of
these lawsuits will fail. I think most lack merit. However the point is to
avoid being sued in the first place. And that’s why 2023 will be the year of
consent and the year of enhanced disclosures.”
Along with asking for
consent, legal experts recommend brands clearly display privacy policies that
indicate what tracking tools are being used and how and why the data is being collected.
Heed the warning
Industry leaders say these class actions filings should not be surprising to brands – but maybe they will be a wake-up call.
“Anywhere you have regulation
around data – the U.K., the U.S., the European Union, Canada – you need to be
prepared for lawsuits. And the best way to be prepared is to document what you
do and the reason you do it, so it doesn’t look opportunistic that you are
capturing data,” says Eric Leopold, founder and managing director of Threedot
And says Leopold, used correctly,
this type of data can provide valuable insights for brands.
“All retailers want to give a
good user experience,” he says.
“And how do you know users are struggling on your site? You look at all the sessions
and see if something is wrong. Maybe you have X percentage of your travelers,
for example, that don’t pay or don’t add ancillaries… So retailers need these
types of tools, but there is a right way and a wrong way of using them.”
Seth Cassel, co-founder
of direct marketing platform EveryMundo – which was
acquired by PROS in 2021 – agrees. But he says brands should
also consider if there are alternatives to session replay software that does not create as much risk for legal action.
For example, “multi-variant
testing, coming up with alternative layouts, interfaces, user flows, etc.” and “heatmap
tools where you are not tracking user sessions per se, you are getting
aggregated data on what users are doing, where they are clicking, but not
watching their flow and recording their full actions.”
And Cassel says he encourages
brands to start by asking what they are trying to achieve before implementing
any sort of consumer analytics tools.
“You record a bunch of users,
you watch those sessions, then what? Are you prepared to rebuild things? You need
a certain level of agility,” he says.
“When we work with these
customers, particularly the airlines, they find most success and satisfaction
when they are realistic about the limitations of the tools they have. It’s
about getting better all the time. Improving conversion rate, improving user
experience on site, improving whatever actions you want to drive.”