Home Depot Using Visitors’ Actions at Its Website Florida Class Action

Can a company be said to “intercept” communications on its own website? This class action brings suit against Home Depot, Inc. under the Florida Security of Communications Act (FSCA). The complaint claims that the company uses “session replay” software that allows Home Depot to intercept the electronic communications of visitors that it later uses to track, examine, and replay their interactions with the website. The complaint alleges, “Such clandestine monitoring and recording of an individual’s communications has long been held a violation of the FSCA.”

The class for this action is all persons living in Florida (1) who visited Home Depot’s website and (2) whose electronic communications were intercepted by Home Depot or on its behalf, (3) without the persons’ prior consent.

Plaintiff Michael Smart has visited Home Depot’s website about fifteen times during the past year. During each of these visits, he was in Florida. During one or more of these visits, the complaint alleges “[u]pon information and belief” that Home Depot used the session replay software to intercept Smart’s interaction with its website, including mouse movements, clicks, information entered, and content viewed. The complaint says Home Depot also recorded his location and the times and dates of the visits.

The complaint claims that Smart never, at any time, gave Home Depot, its employees, or its agents his consent to intercept his electronic communications with the website. In fact, it says, Smart never had “a reasonable opportunity” to know about the interceptions of his communications, because the company did not disclose it or ask for his consent to it.

According to the complaint, “[i]t is a violation of the FSCA to intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept any electronic communication.” Additionally, it quotes the law as saying, it is a violation to use “the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection[.]”

The complaint alleges that visitors to the website had “an expectation of privacy” and that Home Depot both unlawfully intercepted the electronic communications of visitors and unlawfully used the intercepted communications.

Under the FSCA, the complaint claims, visitors whose communications were intercepted are entitled to liquidated damages at the rate of $100 per day for each violations or a flat $1,000, whichever amount is higher. The complaint also asks for reasonable attorneys’ fees and costs, an injunction against Home Depot continuing its interception practice, and “[s]uch further and other relief the Court deems reasonable and just.”

Article Type: Lawsuit
Topic: Privacy
Tags: Intercepting Electronic Communications, Your Privacy