1-800 Contacts Hit with Class Action Over Alleged ‘Wiretapping’ of Florida Website Visitors

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A proposed class action has been filed over 1-800 Contacts’ alleged practice of “wiretapping” the electronic communications of website visitors in Florida without their knowledge or consent.

Per the case, the defendant uses tracking, recording and/or “session replay” software embedded in the code of 1800contacts.com to “secretly observe and record” visitors’ keystrokes; mouse movements and clicks; information inputted into the site; and pages or content viewed, in apparent violation of a Florida privacy law.

“Defendant intercepted or allowed for the interception of the electronic communications at issue without the knowledge or prior consent of Plaintiff and the Class Members, for its own financial gain,” the complaint says, alleging violations of the Florida Security of Communications Act.

1-800 Contacts has engaged marketing company Quantum Metric, Inc. to provide marketing analytics for its website, the lawsuit alleges. Quantum Metric’s software, according to the suit, includes a “session replay” feature that allows its clients to record and view visitors’ interactions with their websites and mobile apps, including the users’ mouse movements, clicks, typing, scrolling, swiping or tapping, as if the company was “standing over their shoulder,” the case says.

The lawsuit characterizes Quantum Metric’s technology as “not only highly intrusive, but dangerous,” citing a 2017 Princeton University study that found session recording technology like QM’s was collecting sensitive information such as customer credit card numbers and passwords. Per the lawsuit, the defendant has embedded Quantum Metric’s software in its site “for the purpose of capturing information” about visitors.

The plaintiff, a Miami-Dade County resident, says he visited 1800contacts.com in December 2020 and placed an order for prescription contact lenses. During the plaintiff’s visit, the suit says, the defendant captured the plaintiff’s keystrokes and mouse clicks, as well as the date, time and duration of his visit and his IP address, location, browser type and the operating system on his device.

The lawsuit further alleges that when a customer makes a purchase through the defendant’s website, the session replay software captures their personally identifiable information and protected health information.

According to the lawsuit, website visitors are “never actively told” that their electronic communications are being “wiretapped” by the defendant, and they do not provide consent to be tracked. Per the case, 1-800 Contacts’ privacy policy does not disclose the practice, and even if it did, the hyperlink to the policy is “inconspicuous and therefore insufficient” to provide proper notice.

The case, which was initially filed in March 2021 in Miami-Dade County Circuit Court before being removed to Florida’s Southern District Court in May, echoes allegations found in previous putative class action cases against the likes of Frontier Airlines, Old Navy, Norton, Banana Republic, Home Depot, Fandango and Ray-Ban.

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