Joe Alves filed a class-action complaint against BJ’s Wholesale Club, alleging that BJ’s uses computer code, called Session Replay Code (SRC), to secretly record consumer activity on BJ’s website. Alves claims that BJ’s conduct violates the Massachusetts Wiretap Statute, G.L. c. 272, § 99, and the Massachusetts Right of Privacy Statute, G.L. c. 214, § 1B. BJ’s moved to dismiss. Judge Krupp, sitting in the Massachusetts Business Litigation Session, denied the motion.
BJ’s sells groceries, electronics, furniture, and other products through its website. According to the complaint, BJ’s embeds SRC on its website. SRC operates in the background unbeknownst to the BJ’s website visitors. SRC tracks mouse movements, clicks, scrolls, zooms, and keystrokes. Third-party service providers, in turn, create video replays of the visitors’ behaviors and provide them to BJ’s for analysis. Alves alleges that when he visited BJ’s website to shop for tires, SRC captured his website activity, and that activity was shared with third-party service providers for BJ’s monetary gain.
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