Neiman Marcus Accused of ‘Wiretapping’ Florida Website Visitors’ Electronic Communications

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The Neiman Marcus Group LLC has been accused in a proposed class action of violating the Florida Security of Communications Act by “wiretapping” state residents’ electronic communications through the company’s websites.

More specifically, the lawsuit claims Neiman Marcus has used “wiretaps”—including tracking, recording, and/or “session replay” software—embedded in the code on the websites NeimanMarcus.com, BergdorfGoodman.com, Horchow.com, and LastCall.com to intercept users’ keystrokes; mouse movements and clicks; information inputted into the sites; and pages and content viewed without website users’ consent to do so.

“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 alleges, echoing similar suits filed against Frontier Airlines, Old Navy, Norton, Banana Republic, Home Depot, Fandango and Ray-Ban.

According to the 33-page case recently removed from Miami-Dade County Circuit Court to Florida’s Southern District Court, Neiman Marcus has engaged Quantum Metric, Inc., a marketing software-as-a-service company, to provide marketing analytics for the clothing and accessories retailer’s websites. The case explains that Quantum Metric’s software includes a “session replay” feature that records a user’s interactions with a website or mobile application, including mouse movements, clicks, scrolling, typing, swiping or tapping. Per the suit, the software captures, among other information, “all the metadata behind the replay—like user platform, API calls, and network details.”

The lawsuit alleges Quantum Metric’s technology is “not only highly intrusive, but dangerous,” citing a 2017 Princeton University study that found session replay technology was collecting sensitive user information such as credit card numbers and passwords.

“Thus, technologies such as QM’s can leave users vulnerable to data leaks and the harm resulting therefrom,” the suit contends.

The plaintiff, a Miami-Dade County resident, says he visited NeimanMarcus.com on February 2 and 3, 2021 and ultimately made a purchase. Per the case, the session replay technology embedded in the website captured the plaintiff’s electronic communications, including his keystrokes and mouse clicks, and noted the date, time and duration of his visit and the man’s IP address, location, browser type and the operating system on his device. The lawsuit further claims the technology on Neiman Marcus’s website likely captured the plaintiff’s personally identifiable information when he entered it during the purchasing process.

The case alleges Neiman Marcus does not obtain website visitors’ consent before “wiretapping” them or provide adequate notice of its privacy policy. Even if a website user did agree to the privacy policy by using Neiman Marcus’s sites—“and they do not,” the suit says—the policy fails to mention “any aspect” of Quantum Metric and its session replay software, according to the case. Thus, website visitors do not consent to being wiretapped through the defendant’s websites or having their electronic communications recorded and shared, the suit relays.

The lawsuit looks to represent Florida residents who visited Neiman Marcus’s websites and whose electronic communications were intercepted or recorded by Quantum Metric on behalf of the defendant without their consent.

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