• by Wendy Davis  @wendyndavis, November 20, 2018

A federal judge has dismissed a class-action complaint accusing data broker and marketer NaviStone and mortgage lender Quicken Loans of violating people's privacy by using "de-anonymization" technology that allegedly identified otherwise unknown web users.

But the ruling, issued by U.S. District Court Judge Esther Salas in New Jersey, allows Michael Allen to reformulate a claim for “intrusion upon seclusion” and bring it again.

Allen's lawsuit against Quicken Loans and NaviStone stemmed from a report last year that retailers were embedding code from NaviStone on their sites. That code allegedly captured a host of information from visitors to online commerce sites -- including their keystrokes, IP addresses, and other data -- and then determined the identities of at least some visitors. For instance, if web users typed in their email or snail mail addresses, the technology's keystroke-logging capabilities would record the addresses, even if the users never hit the "enter" button, Gizmodo reported last year.

Allen alleged in a lawsuit filed last December that NaviStone's technology amounts to “wiretaps” that enable it “to immediately, automatically, and secretly observe the keystrokes, mouseclicks and other electronic communications of visitors regardless of whether the visitor ultimately procures financial services from Quicken.”

He claimed that NaviStone and Quicken Loans violated federal wiretapping laws and also a New Jersey privacy principle that prohibits “intrusion upon seclusion” -- the term for a violation of privacy that's “highly offensive to a reasonable person.”

She dismissed that claim, but “without prejudice” -- meaning that Allen can bring it again. She says in the opinion that Allen's allegations regarding that claim were too “conclusory” and that he didn't spell out whether the damages on a class-wide basis would amount to at least $5 million -- the minimum required for Allen to proceed with the potential class-action in federal court.

She also dismissed claims relating to alleged violations of the federal wiretap law. Those dismissals were “with prejudice,” meaning that Allen can't amend those claims and bring them again.

Quicken Loans isn't the only company sued for allegedly working with NaviStone. Consumers also brought complaints in federal court in New York against mattress company Casper, men's outdoor apparel company Moosejaw and clothing retailer Tyrwhitt. In July, U.S. District Court Judge William Pauley in the Southern District of New York dismissed all claims against Casper, Moosejaw, Tyrwhitt and NaviStone.

In the last four weeks, two different California residents have brought new class-action privacy complaints against Casper, New Moosejaw and NaviStone in federal court in California. Those complaints -- which contain similar allegations to the previous ones -- are in the initial stages of litigation.