Jamison Narbaitz

Florida Federal Court: Session Replay Software Does Not Violate Decades-Old Wiretap Statute

On September 9, 2021, the U.S. District Court for the Southern District of Florida followed the recent trend of Florida state and federal courts by dismissing a putative class action lawsuit alleging that Costco’s use of session replay software violates the Florida Security of Communications Act (“FSCA”). Goldstein v. Costco Wholesale Corp., U.S.D.C., S.D. Fla., Case No. 9:21-cv-80601, Doc. No. 53. Noting the “flurry of virtually identical cases wherein creative class action litigants have seized on a novel reading of Florida’s decades-old wiretapping statute,” the court analyzed the FSCA’s statutory construction to provide “a deeper analysis to clarify [the FSCA’s] limited scope.”

The court observed that a violation of the FSCA requires the interception of the “contents” of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device; and that Florida courts interpreting “contents” have distinguished between “record information” about a customer and the actual “content” (i.e., the “substance, purport, or meaning”) of a communication itself. The court found that the plaintiff’s and putative class’s movements on Costco’s website (e.g., mouse clicks and movements, scroll movements, and pages and content viewed) and information voluntarily input (e.g., keystrokes, copy and paste actions, and search terms) did not convey the substance of communications and therefore fall outside the FSCA’s purview. The court analogized the session replay software’s tracking of cyber movements to record information obtained by a security camera that silently tracks physical movements without capturing the substance of any particular conversation. The court further observed that by its own terms the FSCA does not apply to “[a]ny communication from an electronic or mechanical device which permits the tracking of the movement of a person or an object.”

Accordingly, the court dismissed the lawsuit with prejudice, noting that the session replay software’s recordings contained no substance, and that “[n]o substance means no contents, no contents means no interception, and no interception means no FSCA violation.” In light of its conclusion based on statutory construction, the court did not consider other arguments raised by Costco, including the issue of consent.

Although the court’s reasoning based on the statutory construction of the FSCA and the definition of “contents” differs from that of courts in other jurisdictions (like California) which have found that the use of session replay software does not violate similar wiretap statutes or privacy rights since the software vendor is not a third-party wiretapper (see, e.g., Graham v. Noom, U.S.D.C., N.D. Cal., Case No. 20-cv-06903, Doc. No. 73), the takeaway is that courts are continuing to find that the use of such software does not provide a basis for wiretapping or eavesdropping claims again retailers or websites.

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