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Update:
- A proposed class action lawsuit targeting General Motors and Decibel Insight over claims the companies invaded the privacy of consumers was dismissed by a Delaware federal judge.
- Massie and Manglani claimed in their 2020 class action lawsuit that software developed by Decibel was able to track GM website visitors’ addresses, mouse and keyboard clicks, and the location and time of their visits, among other things.
- The judge overseeing the case sided with GM and Decibel, however, ruling Massie and Manglani had not been dealt an actual injury since their personal information wasn’t gathered.
- The judge determined further that “eavesdropping” on communications that do not involve personally identifying information or which a party would have a “reasonable expectation of privacy” does not constitute a concrete injury.
- The judge also ruled that a recently proposed $90 million class action settlement to resolve claims Facebook unlawfully tracked its users while they were logged out of the platform did not help Massie and Manglani’s claims.
Decibel, a marketing software firm used by General Motors (GM), is the subject of a new class action lawsuit that claims its programs invade consumer privacy and violate the law.
Two California residents, Dakotah Massie and Neil Manglani, initiated the class action lawsuit after each visited GM websites — Chevrolet.com, to be specific — and found out that Decibel software embedded there collected their activity without their consent, they say.
The Decibel software captures a web visitor’s mouse clicks, keystrokes, address, IP address and the location and time of their visit, among other things, the consumers claim.
“Crucially, [General Motors] does not ask users, including Plaintiffs, whether they consent to being wiretapped by Decibel,” the class action lawsuit says. “Users are never actively told that their electronic communications are being wiretapped by Decibel.”
Massie and Manglani filed the federal class action lawsuit against GM and Decibel in U.S. District Court for the Eastern District of California on Nov. 4. They claim the companies violated the California Invasion of Privacy Act and the California constitution by essentially wiretapping them and countless others who visit GM websites and others using the same Decibel services.
It is unclear how many other consumers might qualify to participate in the class action lawsuit, if it is certified by the court to move forward as a class action lawsuit, but lawyers for Massie and Manglani broadly estimate there could be thousands.
According to the class action lawsuit, Decibel is a marketing software-as-a-service company that sells its “Session Reply” program to companies that want to track and record internet user activity to generate marketing analytics. Session Replay captures a website visitor’s “session” on the site, recording their activity while there for replay later.
The idea behind the service is to give companies data that can help them improve their website design and customer experience, the class action lawsuit claims.
Decibel’s service and software “tracks and records every session to ensure you have the details you need to better understand the customer online journey, troubleshoot errors, and put context around known issues,” the class action lawsuit quotes one of the company’s own marketing videos as saying. “From start to finish, you get to see every click, scroll, mouse movement, and page view.”
The software is embedded in the sites using it, including the GM websites, lawyers for Massie and Manglani say.
Website visitors are unaware, and their consent is never sought, the class action lawsuit claims, which “functions as a wiretap,” the class action lawsuit claims.
The Massie and Manglani case is not the only one recently filed against a company for using the kind of embedded tracking software Decibel allegedly supplies to GM websites.
In late September, another California man filed a class action lawsuit against Cars.com over claims the car-buying website uses a service offered by Jornaya to secretly record visitors’ activity.
Jornaya’s parent company, Lead Intelligence, is also a defendant in that class action lawsuit.
The plaintiff in Cars.com case also argues the use of embedded activity tracking software without user consent violates the California Invasion of Privacy Act.
State lawmakers passed the California Invasion of Privacy Act in 1967 to protect residents from unlawful recording, monitoring or eavesdropping, and it has been traditionally applied to telephone activity. But in recent years it has begun to be applied to internet activity.
In April, the 9th Circuit Court of Appeals considered a case brought by social media users who claimed their rights to privacy had been violated when Facebook allegedly tracked their browser histories.
Facebook wanted the case tossed out, but the court sided with the users, finding they had a reasonable enough expectation of privacy under the California law for their lawsuit to proceed.
Have you ever visited one of the GM websites? Have you become aware that your actions while visiting a website were being captured for later use? Tell us about it in the comment section below.
Lead plaintiffs Massie and Manglani and the proposed Class Members are represented by L. Timothy Fisher and Joel D. Smith of Bursor & Fisher P.A.
The Decibel Class Action Lawsuit is Dakotah Massie, et al. v. General Motors Co., et al., Case No. 1:20-cv-01560-NONE-JLT, in the U.S. District Court for the Eastern District of California.
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