Class Action: General Motors, Decibel Insight Accused of ‘Wiretapping’ Calif. Chevrolet.com Visitors [UPDATE]
Last Updated on February 24, 2022
Massie et al. v. General Motors Company et al.
Filed: November 4, 2020 ◆§ 1:20-cv-01560
A class action alleges General Motors and Decibel Insight have unlawfully "wiretapped" California visitors to Chevrolet.com.
California
Case Updates
February 23, 2022 – GM, Decibel “Wiretapping” Class Action Dismissed
The proposed class action detailed on this page was dismissed after a federal judge found GM’s mouse- and keyboard click-tracking practices did not cause the plaintiffs any concrete harm.
In a 12-page memo, United States District Judge Richard G. Andrews granted General Motors’ and Decibel Insights’ motions to dismiss the case after finding that the plaintiffs failed to allege that any of the information collected by the Session Replay software was “personal” or “private.” Judge Andrews relayed that “[e]avesdropping” on communications that do not involve personal and/or personally identifiable information, or information over which a party has a reasonable expectation of privacy, does not amount to actual damage.
“Therefore, I find Plaintiffs have not suffered a concrete injury because they do not have a privacy interest at stake,” the judge wrote.
Moreover, the judge criticized the plaintiffs’ attempts to analogize their allegations with a number of other privacy class actions, including suits against Facebook, Viacom, Google and ESPN. Per the memo, the judge stated that the plaintiffs’ suit against GM and Decibel was “hardly comparable” to a tracking case against Facebook given GM only recorded the consumers’ browsing activity while they were on the automaker’s own website and obtained no personal information. The suit against Facebook to which the plaintiffs compared their case alleged the social media platform continued to track users even after they had logged out of Facebook.
With regard to the plaintiffs’ effort to equate their case to a suit that alleged Viacom tracked children’s web browsing and video-watching habits, Judge Andrews said the consumers failed to provide a basis for the conclusion that the information GM collected through its own site was legally protected or allege that there was any unlawful disclosure of the data.
Ultimately, the judge found that the plaintiffs failed to explain how either GM or Decibel’s possession of the consumers’ anonymized, non-personal data regarding their web browsing on GM’s website “harms their privacy interests in any way.”
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A proposed class action alleges General Motors and Decibel Insight, Inc. have unlawfully wiretapped the electronic communications of those who visit the automaker’s websites.
The 15-page lawsuit claims the apparent wiretaps are “embedded in the computer code” of the websites—Chevrolet.com, in the plaintiffs’ cases—and used by GM and Decibel Insight to “secretly observe and record website visitors’ keystrokes, mouse clicks, and other electronic communications,” including the entry of personal information, taps, swipes and other touchscreen-specific gestures, in real time.
Alleged in the complaint are violations of the California Invasion of Privacy Act, a state law that prohibits businesses from using technology to read, attempt to read or learn about the contents or meaning of electronic communications without authorization from those involved.
According to the lawsuit, Decibel Insights is a marketing analytics software developer. A feature available through Decibel Insight’s software is called “Session Replay,” which, per the lawsuit, purports to help businesses improve their website design and customer experience. More specifically, “Session Replay” tracks and records every website session so as to provide a business with a better understanding of “the customer online journey,” as well as the ability to troubleshoot errors and “put context around known issues,” the lawsuit says.
Per the suit, “Session Replay” is used whether a consumer browses a website on a desktop computer, mobile device, tablet or smartphone application. The software, the case relays, captures every user and device interaction, including mouse movements, zooming, and rotating, with the artificial intelligence watching back “every single session replay automatically” to glean insights. Information obtained from each tracked user session is transmitted to Decibel Insight’s servers before being made available to the company’s clients, the case says.
The lawsuit argues, however, that technology such as that offered by Decibel Insights is “not only highly intrusive, but also dangerous” in that security shortcomings pose a threat to consumers’ sensitive financial and personal information. According to the case, Decibel Insights admits to as much on its website, stating, in part, that “any tool used to record user interactions and behaviors will bring a privacy concern,” and noting that “[t]he biggest worries come up surrounding the potential compromise of site visitors’ personal initiable information,” including names, phone numbers, emails and more.
As part of its agreement with Decibel Insights, General Motors pays the firm to supply California website visitors’ keystrokes, mouse clicks and other communications, and unlawfully logs that information, the lawsuit says.
The plaintiffs, Bakersfield and Hacienda Heights, California residents, say they visited Chevrolet.com in August and September 2020 to browse GM’s vehicle selections without purchasing anything. During those visits, the defendants captured the plaintiffs’ keystrokes and mouse clicks and the date, time, and duration of their visits, as well as their IP addresses, locations, browser types and device operating systems, the case claims.
According to the suit, the defendants failed to obtain permission from the plaintiffs and proposed class members before tracking their communications on Chevrolet.com.
“Crucially, Defendant GM does not ask users, including Plaintiffs, whether they consent to being wiretapped by Decibel,” the lawsuit alleges. “Users are never actively told that their electronic communications are being wiretapped by Decibel.”
The suit looks to cover all California residents who visited General Motors’ websites and whose electronic communications were intercepted or recorded by Decibel.
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