How Websites Track You and What Attorneys are Doing to Protect Your Privacy

Think about the last time you saw an ad on the internet. Did it appeal to you? Were you interested in what it was advertising? Did you feel like the internet was reading your mind about what to put on your browser? Most people in today’s world would answer yes to these three questions. How are the things on your browser so specifically and accurately tailored to you?

Although the internet isn’t reading your mind, it’s close. Websites track you in many ways when using the internet, here are a few of the ways they do that.

The first way is through cookies. I’m sure you’ve seen the notifier that comes up when you enter a new domain that the website uses cookies and you are prompted to accept or decline, but what exactly are cookies? Cookies are sets of information that a website sends to your computer after you visit it. Websites use cookies to track and monitor your activity while you are on their domain, helping them store information for each time you visit. There are multiple types of cookies, some for when you are on the website, some save your passwords, and others are used to track multiple visits to the same website over time.

Another way websites track you is by using plug-ins. Plug-ins are used by third parties to look at users’ browsing history and then they give the data back to the website it was on. It is up to the website to choose what to do with the data, using the information or selling it to advertisers. 

The last way websites track you is called session replay software. This is used by online businesses to recreate the experience of their users by tracking the clicks, keystrokes, and movement of the mouse while on the website, creating a reconstruction of the visit. This is different from cookies because cookies will turn all the data they collect into code, software replay creates a replica of the visit. 

An emerging trend in the class action world has seen plaintiff lawyers sue under state and federal wiretapping laws for tracking users in these ways. This year, the Supreme Court denied Facebook’s appeal in a proposed class action lawsuit accusing Facebook of violating the Wiretap Act due to their use of plug-ins. Third parties allegedly added the “like” and “share” button to their websites as plug-ins and gave it to Facebook who sold the data to advertisers for profit. 

Google has also been accused of violating the federal Wiretap Act using cookies on users in private browsing mode. According to an article written by the law firm Davis, Wright, Tremaine LLP, when the code behind their cookies are sent to Google, it constitutes an “intentional acquisition of personal data” which is banned by the Wiretapping act. Furthermore, users are implicitly denying consent to the collection of data by going into a private browser yet Google still collects it. In April, Google’s motion for dismissal of the case was denied by a federal judge. 

Another example of plaintiff lawyers suing under the Wiretap Act is seen in cases alleging session replay software violates the “All Party Consent” clause in the Wiretapping Act. Since these wiretapping laws were created a long time ago when the internet didn’t exist, there’s no precedent for how the “All Party Clause” applies to website interaction. 

With a substantial rise in the number of these cases, there is pressure on judges to make impactful decisions that will set the precedent. Plaintiff and defense lawyers alike are anxiously awaiting these rulings and whichever way the case goes, you can bet the other side of the aisle will object. With time we should see these laws thoroughly litigated which begs the question does this legislation need an amendment to address common problems. 
As always Certificate Clearing is here to update you on how this trend progresses and the status of both the Google and Facebook cases. We would love to be your one stop shop for all things class action so make sure to continue checking us out here on LinkedIn and give us a follow on twitter, @Recovery_by_CCC, to continue staying up to date on the latest class action news.

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