A federal district court has refused to completely dismiss putative class-action lawsuits accusing clothing retailer Old Navy LLC of distributing eavesdropping software on its website.
the trial, Miguel Licea v. Old Navy LLCfiled in US District Court in Riverside, Calif., in August 2022, says San Francisco-based Old Navy’s software allows the retailer to “surreptitiously record every aspect of a visitor’s interaction with the website, including keystrokes, mouse clicks, data entry and other electronic communication,” which is “both illegal and offensive.“
It is said that the website secretly registered Mr. Licea visits the website using a “session replay”; program. It said it also recorded his communications with someone he thought was a customer service representative, but was in fact a chatbot.
The lawsuit accuses Old Navy of violating the California Invasion of Privacy Act.
In Wednesday’s ruling, the court said Licea “has pleaded sufficient facts to allege that his communications are intercepted in transit,” in violation of CIPA.
The court also said Licea had “sufficiently alleged” that website users had a reasonable expectation of privacy, and therefore the communications fell within CIPA.
The court agreed to dismiss the plaintiff’s direct and indirect liability claims. On the direct liability claim, the judgment says: “Defendant was a party to the customer chats at issue in plaintiff’s complaint. Thus, under this well-established “party exception,” plaintiff’s claim that defendant is directly liable for wiretapping fails, and an amendment would be futile.”
Attorneys in the case did not respond to requests for comment.