recently<\/a> about decisions from state and federal courts in California that have been more favorable for defendants.\u00a0 However, for years the FSCA has flown under the radar.\u00a0 When courts first began applying the FSCA to emerging technologies (like session replay) the majority of courts declined to find that the FSCA could be applied to third-party technologies that tracked or analyzed website visitor behavior.\u00a0 This is in large part because of a decision from a state court in Florida in 2021, in the early days of consumer privacy class actions.\u00a0 In Jacome v. Spirit Airlines Inc., the Circuit Court of Florida granted the defendant airline\u2019s motion to dismiss, and determined that the use of session replay software did not fall under the scope of the FSCA, stating that \u201cCongress did not intend for the Federal Wiretap Act to extend to the use of commonplace analytics software to improve a website browsers\u2019 experience and the FSCA, being modeled after the Federal Wiretap Act, likewise does not extend to the use of commonplace analytics software to improve a website browsers\u2019 experience.\u201d\u00a0 2021 WL 3087860, at *3 (Fla. Cir. Ct. June 17, 2021).\u00a0 The Jacome court further held that the mouse clicks\/movements, keystrokes, search terms, etc. that was tracked was \u201cprecisely the type of non-record information that courts consistently find do not constitute \u2018contents\u2019 under the Federal Wiretap Act or any of its state analogs because it does not convey the substance or meaning of any message\u201d, and that \u201csoftware\u201d does not constitute a \u201cdevice\u201d under the FSCA.\u00a0 The Jacome court analyzed the legislative history of the Federal Wiretap Act\u2014which the FSCA was based upon\u2014and concluded that amendments to that statute to include the term \u201celectronic communications\u201d was \u201cto protect private personal and business records (like medical records) from interception on computerized recordkeeping systems.\u201d\u00a0<\/p>\nMost of the courts analyzing FSCA cases followed Jacome, declining to find that the FSCA could be applied to emerging third-party technology like session replay.\u00a0 So, the plaintiffs\u2019 bar focused their efforts and litigation in other states and under other state statutes.\u00a0 However, that is all about to change.<\/p>\n
What Changed?<\/p>\n
Here and there over the past couple of years, courts around the country have issued decisions indicating that a change might be coming to interpretations of the FSCA.\u00a0 For example in Castillo v. Costco Wholesale Corp., No. 2:23-cv-01548, 2024 WL 4785136 (W.D. Wash. Nov. 14, 2024), the court analyzed claims of violations of CIPA, Washington Privacy Act, and the FSCA (among others) related to Costco\u2019s use of third-party pixels (such as the Meta pixel) to collect health data from the plaintiffs\u2019 interactions with the Costco pharmacy website.\u00a0 The court determined that \u201cthe FSCA does not categorically exempt website tracking technologies\u201d and that \u201cthe FSCA\u2019s exception of movement tracking information from the definition of \u2018electronic communications\u2019 appears to be similar to the Ninth Circuit\u2019s distinction between \u2018contents\u2019 of a communication and \u2018record\u2019 information.\u201d\u00a0 That court further held that the plaintiffs\u2019 search terms (for things like patient status, prescriptions, and underlying health conditions) would constitute \u201ccontents\u201d of a communication under FSCA.\u00a0<\/p>\n
What Happened in W.W. v. Orlando Health, Inc., and Why Does it Matter?<\/p>\n
In March of this year, a Florida federal court came to a similar conclusion about the FSCA, effectively putting the statute back into play for privacy consumer class actions.\u00a0 In W.W. v. Orlando Health, Inc., the plaintiff alleged that the defendant, a healthcare organization, installed tracking technologies (pixels from Meta and Google, among others) on its patient portal website, in violation of the FSCA and Federal Wiretap Act, among other claims.\u00a0 No. No: 6:24-cv-1068, 2025 WL 722892 (M.D. Fla. Mar. 6, 2025).<\/p>\n
The court denied Orlando Health\u2019s motion to dismiss the FSCA claim, and held that the plaintiff had adequately alleged that the electronic communications she claimed were intercepted were \u201ccontents\u201d under the FSCA.<\/p>\n
The Orlando Health\u00a0court took care to distinguish Jacome in its opinion.\u00a0 First, the court distinguished the session replay technology at issue in Jacome from the tracking pixels at issue in the case before it, stating that the plaintiff\u2019s \u201cclaims are predicated on the tracking tools\u2019 interception of her communication . . . not on the simple fact that her movements on Defendant\u2019s website were tracked.\u201d\u00a0 The Orlando Health court was particularly concerned with the sensitive health data such as search queries that could divulge a website user\u2019s health condition, and how that data differed from just mouse clicks.\u00a0 It also noted that the Jacome court had looked to the intent of the Florida and federal legislatures in passing the FSCA and Wiretap Act, and that \u201cthe FSCA was designed to protect precisely the information at issue in this case\u2014private medical information\u201d\u2014as opposed to just keystrokes and mouse clicks.\u00a0 The court also acknowledged how numerous courts in other states had reached similar conclusions in cases involving the same types of third-party technologies\u2014despite the fact that these claims were most often brought under other states\u2019 statutes.<\/p>\n
What’s Next?<\/p>\n
The Orlando Health decision is a perfect example of how the law can change when applied to new or emerging technologies.\u00a0 It also marks a turning point: federal courts in Florida are now at least open to applying the FSCA to the newer wave of website tracking technologies, and there is now a roadmap for how plaintiffs can succeed on a wiretapping claim.\u00a0 This makes Florida fertile ground for a surge of pixel-based wiretapping litigation.\u00a0 We expect to see plaintiffs file complaints in Florida federal courts alleging fact patterns analogous to Orlando Health\u2014especially in sectors where sensitive data or communications may occur.<\/p>\n
What Should You Do?<\/p>\n
The bottom line is that companies should not become complacent about the third-party technologies they deploy on their websites.\u00a0 If you have a consumer-facing website, now is the right time to take stock of the third-party technologies you use to analyze or track customer behavior, and develop a plan to identify and mitigate any potential risks.\u00a0 Make sure your website\u2019s privacy policy and terms of use are reviewed and updated regularly (and, make sure you have an up-to-date understanding of how to actually make these enforceable).\u00a0 If you have any questions, do not hesitate to reach out to our team of privacy and litigation professionals.<\/p>\n","protected":false},"excerpt":{"rendered":"Unlike some other states that require all parties to a conversation to consent to being recorded (looking at…\n","protected":false},"author":2,"featured_media":67734,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[39499,28,30,29,39500,39503,39501,11111,39502],"class_list":{"0":"post-67733","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-florida","8":"tag-cipa","9":"tag-florida","10":"tag-florida-headlines","11":"tag-florida-news","12":"tag-fsca","13":"tag-ip-media-law-updates","14":"tag-pixel-litigation","15":"tag-privacy","16":"tag-technology-law-updates"},"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us-fl\/wp-json\/wp\/v2\/posts\/67733","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us-fl\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us-fl\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-fl\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-fl\/wp-json\/wp\/v2\/comments?post=67733"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us-fl\/wp-json\/wp\/v2\/posts\/67733\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-fl\/wp-json\/wp\/v2\/media\/67734"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us-fl\/wp-json\/wp\/v2\/media?parent=67733"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-fl\/wp-json\/wp\/v2\/categories?post=67733"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-fl\/wp-json\/wp\/v2\/tags?post=67733"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}