Hundreds of lawsuits have accused businesses of using website analytics tools to “wiretap” their customers’ interactions with their website, but these lawsuits often overlook a basic pleading requirement of any wiretapping claim: the collection of a “communication.”  A California federal judge last week added teeth to this requirement, dismissing a wiretapping lawsuit filed against Great Wolf Resorts, Inc. (“Great Wolf”) because the plaintiff failed to plead what “communication” she had with the Great Wolf website in the first place.  See Augustine v. Great Wolf Resorts, Inc., 2024 WL 3450967 (S.D. Cal. July 18, 2024).

The lawsuit made allegations typical of website wiretapping complaints.  Plaintiff Ophelia Augustine alleged that Great Wolf used a website analytics tool (session replay code) supplied by a vendor (Contentsquare) to “record” visitors’ interactions with its website, including any “words and text” they typed, even if this information was “not fully entered.”  In Plaintiff’s case, these interactions allegedly included “look[ing] at hotel rooms and vacation packages” and otherwise “perusing” Great Wolf’s website.  Plaintiff asserted a claim against Great Wolf for violation of section 631(a) of the California Invasion of Privacy Act (“CIPA”), on the theory that Great Wolf aided and abetted its vendor’s unlawful interception of her communications with Great Wolf’s website.

The Court dismissed Plaintiff’s claim because “these allegations fail to show communications between Plaintiff and Great Wolf,” let alone “that the contents of such communications were intercepted”—an independent requirement fatal to Plaintiff’s CIPA claim.  Central to the Court’s holding was that Plaintiff’s alleged “perusing” of Great Wolf’s website did not “in any way specify the nature of the alleged intercepted communications” or that she “intended to convey a message to Great Wolf.”  For example, even though the tool allegedly had the capability to collect credit card numbers, “[i]t is not clear . . . how simply entering a credit card number . . . constitutes an ‘intended message conveyed’ to the retailer absent an allegation that it was actually sent to the retailer (i.e., by placing an order).”  But “Plaintiff makes no allegation that she placed an order on Great Wolf’s website.”

This decision establishes that plaintiffs cannot rely on general allegations of website browsing to satisfy the “communication” element; they must “more precisely identify the communications implicated” to satisfy Rule 8’s pleading requirements.  Defendants facing similar wiretapping lawsuits should therefore consider challenging not only the contents element of such claims, but also the requirement that plaintiff allege the existence of a communication.