Class Action Accuses Spirit Airlines of Tracking Website Visitors Without Consent [UPDATE]
Last Updated on May 10, 2024
Mandeng v. Spirit Airlines, Inc
Filed: February 7, 2023 ◆§ 3:23-cv-00233
A class action alleges Spirit Airlines has embedded “session replay" software on its website to secretly capture and record visitors’ online interactions.
May 10, 2024 – Spirit Airlines Website Tracking Lawsuit Dismissed; Plaintiffs Appeal Decision
A federal judge dismissed the proposed class action lawsuit detailed on this page in April 2024, and the plaintiffs have notified the court that they are appealing the decision to the Third Circuit Court of Appeals.
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In a 13-page order filed on April 5, U.S. District Judge Marilyn J. Horan granted Spirit Airline’s motion to dismiss the case, finding that the plaintiffs failed to adequately allege that they suffered any concrete harm from the defendant’s apparent use of session replay software.
The judge noted that Spirit’s senior vice president and chief information officer, Rocky Bruce Wiggins, attested in a declaration that the software does not collect personally identifying information from website visitors, but is instead used to “ensure Spirit’s website functionality during users’ interactions and to optimize a consumer’s experience and perspective of the website.”
“[The] plaintiffs have offered nothing in response to Spirit’s sworn assertions that no personalized data was recorded,” Judge Horan wrote.
The plaintiffs’ appeal notice was submitted to the court on April 23, one day after Judge Horan officially tossed the case.
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A proposed class action alleges Spirit Airlines has embedded “session replay" software on its website to secretly capture and record visitors’ online interactions.
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The 21-page lawsuit claims the airline has violated a California privacy law by failing to obtain consent before “wiretapping” the communications of anyone who interacts with Spirit.com. The case says the session replay code used by Spirit allows the airline to track website users’ mouse movements, clicks, scrolls, zooms, window resizes, keystrokes or text entries as they search for and book flights.
The session replay code captures not only the entirety of a user’s visit in real-time but also lets Spirit watch back a video of each user session, the suit contends.
“This information is valuable to companies because they can use this data to improve customer experiences, refine their marketing strategies, capture data to sell it, and even to secure more sensitive consumer data,” the complaint reads. “In a consumer-driven world, the ability to capture and use customer data to shape products, solutions, and the buying experience is critically important to a business’s success.”
The lawsuit stresses that since session replay codes are designed to “indiscriminately” capture as many website interactions as possible, they may also capture any highly sensitive data entered or displayed on webpages, such as medical conditions, password information or credit card details. According to the case, the software can also record any personally identifying information entered or displayed during a user session and use it to create online “fingerprints” that are “unique to a particular user’s combination of computer and browser settings, screen configuration, and other detectable information.” Companies use fingerprints to identify a user across websites, even when private browsing is enabled, the filing asserts.
The complaint further alleges that session replay code exposes information users didn’t intend to transmit.
“For example,” the filing states, “if a user writes information into a text form field, but then chooses not to click a ‘submit’ or ‘enter’ button on the website, the Session Replay Code may nevertheless cause the non-submitted text to be sent to the designated event-response-receiving server before the user deletes the text or leaves the page.”
The suit contends that such unauthorized disclosures put consumers at risk of identity theft, online scams, and other privacy threats. Concerns over user privacy are so significant that several companies, including Walgreens and Bonobos, have removed session replay code from their websites, and in 2019 Apple required app developers to properly disclose to consumers the use of analytics code to track their in-app activities.
The lawsuit looks to cover anyone in California whose website communications were captured using session replay code embedded in Spirit.com.
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