Class Action Alleges Nike ‘Wiretaps’ Website Users in Calif.

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Nike has been hit with a proposed class action that alleges the sportswear giant has effectively “wiretapped” the communications of visitors to Nike.com in California. 

The 17-page lawsuit alleges Nike has run afoul of the California Invasion of Privacy Act by secretly observing and recording website visitors’ keystrokes, mouse clicks and other electronic communications, including the entry of personally identifiable information, in real time and without consent to do so. The case claims the allegedly illegal “wiretapping” on Nike.com has been handled by third-party marketing analytics company FullStory, Inc., who, on Nike’s behalf, operates software with “session replay” capabilities in order to capture a website user’s interactions and behaviors. 

“As currently deployed, FullStory’s software, as employed by Nike, functions as a wiretap,” the lawsuit alleges. 

More specifically, FullStory, as enabled by Nike, can track via a snippet of back-end code a website visitor’s keystrokes, mouse clicks, data entry, page scrolling, amount of time spent on a page, geographic location and other identifiable details, the suit claims. The lawsuit describes FullStory’s user tracking code as far more than a tool that can simply track where someone went on the Internet, as the online cookies consumers may be familiar with do not engage in the granular session recording at issue in the case. 

“When the website user’s communications are transmitted to Nike’s Website, FullStory records the website user’s interactions locally in the user’s browser in real time, and then transmits that information to FullStory’s recording servers every few seconds,” the complaint says. “FullStory then makes the information available to its clients.” 

The plaintiff, an Elk Grove resident, claims to have visited Nike.com to browse apparel in October 2020. While on the site, FullStory’s session replay feature created a video wherein the plaintiff’s keystrokes and mouse clicks were captured, and the company otherwise captured the date and time of the woman’s visits to Nike.com, the duration of the visits, and her IP address, browser type, operating system and location, the lawsuit says. 

Crucially, according to the complaint, Nike does not ask users whether they consent to being “wiretapped” by FullStory. The case contests that even if a user consents to Nike’s privacy policy, the policy does not mention FullStory or the use of its session replay feature on Nike’s website. 

“At best, the Privacy Policy discusses Nike’s use of ‘Cookies and Pixel Tags’ to collect information, not that users are actively having their website sessions recorded in real time,” the lawsuit says, arguing that a reasonable consumer would not expect that their behaviors and whether or not they made a purchase would be tracked in real time.

The lawsuit looks to represent all California residents who visited Nike.com and whose electronic communications were intercepted or recorded by FullStory. 

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