PITTSBURGH – A Pennsylvania woman has filed class action litigation against video game retailer GameStop, charging that it violated a state wiretap law and invaded its customers’ privacy, when it allegedly intercepted and recorded the electronic communications of visitors to its website.
Amber Cook (individually and on behalf of all others similarly situated) of Lawrence County filed suit in the U.S. District Court for the Western District of Pennsylvania on Aug. 16 versus GameStop, Inc. of Grapevine, Texas.
“GameStop operates the website www.gamestop.com. GameStop is an online and brick-and-mortar retailer for gaming consoles, games, and accessories. However, unbeknownst to the millions of individuals perusing GameStop’s products online, GameStop intentionally procures and embeds various Session Replay Codes from Session Replay Providers on its website to track and analyze website user interactions with www.gamestop.com. One such Session Replay Provider that GameStop procures is Microsoft,” the suit says.
“Microsoft is the owner and operator of a Session Replay Code titled Clarity, which provides basic information about website user sessions, interactions, and engagement, and breaks down users by device type, county, and other dimensions. GameStop’s procurement and use of Microsoft Clarity’s Session Replay Code, and procurement and use of other Session Replay Codes through various Session Replay Providers, is a wiretap in violation Pennsylvania statutory and common law.”
The suit adds the named plaintiff visited www.gamestop.com on her computer while in Pennsylvania and during a visit to GameStop’s website, she fell victim to the defendant’s “unlawful monitoring, recording, and collection of plaintiff’s website communications with www.gamestop.com.”
“Unknown to plaintiff, GameStop procures and embeds Session Replay Code on its website. During the website visit, plaintiff’s Website Communications were captured by Session Replay Code and sent to various Session Replay Providers. For example, when visiting www.gamestop.com, if a website user searches for a certain product, such as a video game, console or accessory, that information is captured by the Session Replay Codes embedded on the website. The wiretapping by the Session Replay Codes is ongoing during the visit and intercepts the contents of these communications between plaintiff and GameStop with instantaneous transmissions to the Session Replay Provider, as illustrated below, in which only 30 milliseconds were required to send a packet of even response data, which would indicate whatever the website user had just done,” the suit states.
“The Session Replay Codes operate in the same manner for all putative Class members. Like plaintiff, each Class member visited www.gamestop.com with Session Replay Code embedded in it, and those Session Replay Codes intercepted the Class members’ Website Communications with www.gamestop.com by sending hyper-frequent logs of those communications to Session Replay Providers. Even if GameStop masks certain elements when it configures the settings of the Session Replay Code embedded on its website, any operational iteration of the Session Replay Code will, by its very nature and purpose, intercept the contents of communications between the website’s visitors and the website owner. For example, even with heightened masking enabled, Session Replay Providers will still learn through the intercepted data exactly which pages a user navigates to, how the user moves through the page (such as which areas the user zooms in on or interacted with), and additional substantive information.”
For counts of violating the Pennsylvania Wiretap Act and invasion of privacy (intrusion upon seclusion), the plaintiffs are seeking the following reliefs:
• Certifying the class and appointing plaintiff as the class representative;
• Appointing plaintiff’s counsel as class counsel;
• Declaring that defendant’s past conduct was unlawful, as alleged herein;
• Declaring defendant’s ongoing conduct is unlawful, as alleged herein;
• Enjoining defendant from continuing the unlawful practices described herein, and awarding such injunctive and other equitable relief as the Court deems just and proper;
• Awarding plaintiff and the class members statutory, actual, compensatory, consequential, punitive and nominal damages, as well as restitution and/or disgorgement of profits unlawfully obtained;
• Awarding plaintiff and the class members pre-judgment and post-judgment interest;
•Awarding plaintiff and the class members reasonable attorneys’ fees, costs, and expenses; and
• Granting such other relief as the Court deems just and proper.
The plaintiffs are represented by Gary F. Lynch of Lynch Carpenter, in Pittsburgh.
The defendant has not yet obtained legal counsel.
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-01292
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com