Website Operators Should Take Steps To Mitigate Risk Of Session Replay And Chatbot Technology Litigation

Recently, there has been a wave of consumer privacy class action litigation against website operators alleging privacy violations around the use of session replay and chatbot technology.

Remarkably, no specific legislative change triggered this increase. Instead, the rise follows recent court decisions holding businesses liable under state wiretap and eavesdropping laws for their use of third-party operated session replay and chat window technologies.

Following these court decisions, enterprising plaintiffs' attorneys - fueled by the prospect of recovering significant statutory damages - have sought to repurpose decades-old wiretapping and eavesdropping statutes, such as the California Invasion of Privacy Act ("CIPA") and similar statutes in Massachusetts and other states, to generate claims arising from the use of such technologies, which are commonly deployed to improve the customer experience. These tools capture user-submitted content and conversations on