An increasingly aggressive plaintiffs’ bar has brought purported class action suits based on the nearly ubiquitous use of tracking technologies used for website analytics. Although any actual harm to the plaintiffs is difficult to articulate, the health care industry has been plagued by a series of these cases. Now the plaintiffs may be moving to financial services with the potential for statutory penalties of hundreds of dollars per user when a duty of confidentiality can be credibly implicated. 

The tracking tags, pixels and similar website analytics technologies are nothing new. Rather, the technologies at issue in such complaints are widely used on websites and mobile applications across industries, including by government entities, to collect information about user behaviors and interactions with the online platform where they are embedded. That information is then sent to a third party for analytics used to enhance user experience on the platform. Many of these technologies are integral to an organization’s ability to ensure its websites and applications are functioning properly, among other things providing crash reports when users encounter issues. Additionally, many consumer-facing businesses contract with third parties to provide session replay scripts, a software that monitors and records web-user activity such as keystrokes, clicks, and scrolling.  Despite the pervasiveness of these technologies, plaintiffs have seized on ambiguities in the California state wiretap act, known as the California Information Privacy Act, as well as federal wiretap law as the basis for exceptionally large damage demands.