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A federal district court has refused to entirely dismiss putative class-action litigation that charges clothing retailer Old Navy LLC with deploying wiretapping software on its website.
The lawsuit, Miguel Licea v. Old Navy LLC, which was filed in U.S. District Court in Riverside, California, in August 2022, says the 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 communications,” which is “both illegal and offensive.”
It says the website secretly recorded Mr. Licea’s visits to the website using a “session replay” program. It said it also recorded his communication with someone he believed to be a customer service representative, but was in fact a chatbot.
The lawsuit charges Old Navy with violations of the California Invasion of Privacy Act.
In Wednesday’s ruling, the court said Mr. Licea “has pled sufficient facts to allege his communications were intercepted in transit,” in violation of the CIPA.
The court also said Mr. Licea had “sufficiently alleged” that website users had a reasonable expectation of privacy, and therefore the communications fall within the CIPA.
The court agreed to dismiss the plaintiff’s cause of action for direct and derivative liability. On the direct liability claim, the ruling says, “Defendant was 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 amendment would be futile.”
Attorneys in the case did not respond to requests for comment.