Class Action Fails to State ‘Unlawful Wiretapping’ Claim: Dynatrace Motion to Dismiss

The July 26 class action alleging spyware from software monitoring company Dynatrace “wiretaps” electronic communications of thousands of website visitors (see 2307270025) “is one of a recent wave of lawsuits flooding courts across the country,” said Dynatrace’s memorandum of law Tuesday (docket 3:23-cv-11673) in U.S. District Court for Massachusetts in Springfield in support of its motion to dismiss.

Virtually all the complaints seek to apply mid-20th century criminal wiretap statutes about telephonic eavesdropping “to modern day internet technology that aids companies in improving user website experience,” said the memorandum. But those laws “were never intended to regulate this technology, and the application simply does not fit,” it said.

The “gravamen” of the complaint filed by plaintiffs Marla Defoort and Alyssa Gary is that when they voluntarily browsed a nonparty online cosmetics retailer’s website, Dynatrace’s session replay technology purportedly captured their online activity, said the memorandum. Session replay is a technology the cosmetics retailer, not Dynatrace, used on its website “to understand and improve its online consumer experience,” it said.

The technology enables website owners “to find ways to better design websites to be consumer-friendly, resolve problems consumers may encounter in using websites, and protect against fraud,” said the memorandum. The plaintiffs contend that the retailer’s own use of the session replay technology on its website for self-improvement “somehow entitles them to statutory damages from Dynatrace under the eavesdropping laws at issue,” it said.

But the plaintiffs’ unidentified activities on the website, which, at best, is the online equivalent of browsing or shopping activity in a brick-and-mortar store, isn’t “protected private activity or communications that Dynatrace somehow eavesdropped,” it said. That’s why the majority of courts to consider claims like theirs here have rejected them, it said.

Most courts said the type of online activity at issue in the Defoort/Gary class action “is neither protected nor the type of conduct these decades-old laws were intended to prohibit,” said the memorandum. The courts also said the use of session replay technology to improve a website doesn’t constitute “unlawful eavesdropping,” it said.

The District of Massachusetts “should do the same here and dismiss this misdirected lawsuit,” said the memorandum, because the Defoort/Gary complaint “fails to plead a cognizable claim for any unlawful wiretapping or eavesdropping.”