By Jim Dalrymple II
A new class action lawsuit accuses Zillow of digitally “looking over the shoulder” of those who visit its website and argues that the company is violating wiretapping laws. Two consumers, Natalie Perkins and Kenneth Hassan, filed the suit Sep. 12 in federal court in Washington state, where Zillow is based.
The complaint alleges that Zillow deploys computer code that allows it to record a consumer’s interactions with its website and then create a video reconstruction of those interactions. This amounts to a “an invasion of the privacy rights of website visitors” and violates a Washington wiretapping law, according to the complaint.
The suit claims that recording consumers’ online interactions “results in the electronic equivalent of ‘looking over the shoulder’ of each visitor to the Zillow website for the entire duration of their website interaction.” The complaint describes the “session replay code” that is used to record the activity of consumers as being deployed “clandestinely.”
“While session replay code is utilized by websites for some legitimate purposes, it goes well beyond normal website analytics when it comes to collecting the actual contents of communications between website visitors and websites,” the suit maintains.
The suit asserts that although users have an expectation of privacy, session replay code can track “all mouse movements, clicks, scrolls, zooms, window resizes, keystrokes, text entry and numerous other forms of a user’s navigation and interaction through the website.” While consumer privacy is the primary concern of the suit, it also maintains that deploying code to record consumer interactions with a website puts people at risk of identity theft.
Although the lawsuit is new, the issues it focuses on have recently been raised in a number of other cases—all of which reflect an underlying philosophical conflict about the nature of the internet and e-commerce. Earlier this month, for example, a man named Jamie Huber sued Zillow in federal court in Pennsylvania for using replay code technology. This case, which closely resembles the Washington suit, centers on alleged violations of wiretapping laws. Huber also sued hardware retailer Lowe’s and travel giant Expedia on the same grounds, indicating that the use of replay code—and the questions that it raises—are widespread and not limited to Zillow.
Moreover, earlier this month, Ryan Margulis sued Zillow in Illinois federal court for using session replay technology, while Ashley Popa, sued it in Pennsylvania on the same grounds. Some of these lawsuits are being handled by the same teams of attorneys.
The deluge of cases hints at how important internet user data has become for large companies, as well as how far data collection has evolved. Indeed, even as it accuses Zillow of privacy violations, the latest suit in Washington acknowledges that customer data “is critically important to a business’s success.”
Most consumers likely have a basic understanding that their data is being collected from websites; people who have Googled a new pair of shoes and then discovered every ad they see now features those same shoes are learning about data collection in real time. But these suits argue that consumers are unaware that the entirety of their interactions with a site can be recorded and reconstructed in a video.
Ultimately, the various suits request jury trials. It remains to be seen how these cases play out—if they end in settlements or succeed in curtailing the use of session replay technology. But if any of these suits prevail, they could reshape how large tech companies gauge audience engagement.
© 2022 Inman News, reprinted with permission.