• by Rick Watson , March 2, 2023

Foot Locker is the target of a new privacy-related lawsuit regarding its chat feature, making even the savviest retailers wince.

We’ve all been to websites where a pop-up invites us to speak with a robot or human employee about our shopping journey. The feature has become nearly ubiquitous on ecommerce sites for marketing, sales, and customer service purposes. Brands or service providers with this capability should be aware of potential legal issues and how to avoid them.

The lawsuit against Foot Locker alleges that because the company is recording chat conversations, archiving them, and sharing them with analytics partners to gather insights, the company is illegally wiretapping. The lawsuit could cost Foot Locker up to $25 million.

A downside of the Internet’s broad accessibility is the vulnerability to getting sued. Any lawyer with the time and willingness to look for obscure violations among the top websites can easily file a lawsuit. 

Technology useful to many could be considered surveillance by others. When a potential customer initiates a chat on your site, what is the customer consenting to? To the release of the conversation’s details forever? For your company’s employees to read it? The company's partners?

It's a more slippery slope than I want to admit. Consider this quote from the lawsuit: “Visitors would be shocked and appalled to know that Defendant secretly records those conversations, and would be even more troubled to learn that Defendant allows a third party to eavesdrop on the conversations in real time to harvest data from the chat transcripts under the guise of ‘data analytics.'"

The Foot Locker lawsuit is not an isolated case. Similar lawsuits were filed against Crocs and Adidas last November. As privacy lawsuits have become more common, there has been greater emphasis on protecting personal information and data privacy. Which means, it's entirely possible more lawsuits could be coming.

While the Foot Locker case plays out, consider consulting with your in-house legal counsel to see if there's anything to be concerned about. Additionally, take these extra steps to ensure the privacy of your customers:

• Create a detailed policy that is consistent with current privacy laws and regulations.
• Regularly update your privacy policy to remain relevant.
• Ensure customers are aware of how their personal information is being used.

In today's evolving landscape, companies must remain vigilant about protecting their customers' personal information to avoid legal issues. The recent lawsuit against Foot Locker highlights the risks associated with recording and archiving chat conversations and sharing them with analytics partners. Even if as a retailer you feel this is “common functionality,” your business still could be at risk.

As privacy lawsuits become more common, it is crucial for companies to regularly update their privacy policies to deal with changes in the market.