How Websites Can Ward Off Novel State Law Wiretap Suits

To most people, the word "wiretap" summons images of detectives with bulky headphones listening in on mobsters' phone calls.

Plaintiffs lawyers, however, have a new litigation strategy that stretches this traditional image of wiretapping. In the past year, they have filed more than 40 state wiretap lawsuits against websites that use third-party analytics tools.

These tools, made by companies such as FullStory Inc., Clicktale Ltd., Decibel Insight and Mouseflow Inc., use cookies to collect data, such as where users click on websites and how they scroll through pages. A feature known as session replay creates videos simulating how a user navigated a website, helping the site owner identify problems and streamline design. Better websites can mean less customer frustration and more sales.

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