A Delaware Court considers an automotive manufacturer’s and digital analytics solutions company’s (DAS Company) motions to dismiss class action claims for alleged violations of the California Invasion of Privacy Act (CIPA) and Federal Wiretap Act.
The case arose when the Manufacturer, General Motors, used “session replay software”. This software was supplied by the DAS Company, Decibel Insights, and operated on General Motors’ website. When a consumer visited the website the software would track their mouse movements, clicks and keystrokes. It would then create a video-accurate render of real visits to the manufacturer’s website. Alongside this they would collect details of the visit such as, date, time, duration, location, and browser type.
Class Action Lawsuit
The Plaintiffs claimed that they had their communications unlawfully intercepted and recorded by Decibel Insights. They stated the use of the software created injuries including from a violation of their privacy.
However, the facts of this case do not align with findings from other Courts on invasion of privacy as no personal details were collected. The Plaintiffs do not allege that any of their information collected was personal or private. In addition, there is also no basis to conclude that the information was legally protected.
There were no allegations that General Motors attempted to monetize or sell the information they collected. The Plaintiffs had made no suggestion their information was unlawfully disclosed to any third-parties. Furthermore, the software only tracked interactions with their own website. General Motors made no efforts to track individuals once they left their own website.
Motion to Dismiss
It was determined that a claim of invasion of privacy requires an intrusion upon something over which a person has a reasonable expectation of privacy. However, Plaintiffs have no expectation of privacy in anonymized, non-personal data regarding their browsing activities. Also, eavesdropping on communications that do not involve personal or identifiable information does not amount to a concrete injury.
Where the Plaintiffs allege that General Motors disclosed their non-private information to Decibel Insights there are then no allegations that the company used the information in any way let alone a harmful way. The Court granted the motions to the dismiss claims.