Yale v. Clicktale, Inc.

Yale v. Clicktale, Inc.

Opinion

ORDER GRANTING MOTION TO DISMISS

Re: ECF No. 28

INTRODUCTION

Gap sells clothing online through its websites, including www.oldnavy.com. It uses Clicktale's software (called "Event-Triggered Recorder") to record what visitors are doing on its websites, such as their keystrokes, mouse clicks, and page scrolling, thereby allowing a full picture of the user's website interactions.

The plaintiff — on behalf of a putative California class — claims that Clicktale is illegally wiretapping her communications with Gap in violation of California's Invasion of Privacy Act (***) and the California Constitution. Clicktale moved to dismiss the claims, in part on the ground that Clicktale — as Gap's vendor for analyzing its website traffic — was a party [*2]  to the communication (and not an eavesdropper).

The court can decide the motion without oral argument. N.D. Cal. Civ. L.R. 7-1(b). The plaintiff does not plausibly plead that Clicktale eavesdropped on her communications with Gap and pleads only that Clicktale is Gap's vendor for software services. She thus does not plausibly plead wiretapping or invasion of privacy in violation of California law.

STATEMENT

The next sections describe how Clicktale's software works, how the plaintiff used Gap's website (and what information Clicktale's software captured), and the case's procedural history.

1. Clicktale's Software

Clicktale provides software to its clients (including Gap) to capture and analyze data so that the clients can see how visitors to their websites are using the sites.¹ The clients put Clicktale's code on their websites to capture the data, and then they can review the data, which is stored in the cloud on Clicktale's servers.² The software records visitor data such as keystrokes, mouse clicks, and other website interactions. Through a featured called Event-Triggered Recorder, Clicktale's clients can see a "playback[]" of any visitor's session on their website.³

2. The Plaintiff Use of Gap's Website

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