• by Wendy Davis  @wendyndavis, December 17, 2024

Siding with Bloomingdale's, a federal appellate court on Tuesday upheld the dismissal of a privacy lawsuit by California resident Amanda Daghaly, who claimed the company violated a state wiretap law by allegedly using tracking technology that's capable of logging keystrokes on Bloomingdales.com.

In a four-page unsigned opinion, a three-judge panel of the 9th Circuit Court of Appeals ruled that Daghaly's allegations, even if proven true, wouldn't show that Bloomingdale's violated a state law that prohibit companies from intercepting the “contents” or “meaning” of people's communications.

“Daghaly’s allegations about her own interactions with the Bloomingdales.com website are sparse,” the judges wrote.

“She alleges only that she 'visited' and 'accessed' the website ... but she does not allege that she herself actually made any communications that could have been intercepted once she had accessed the website,” the judges added. “She does not assert, for example, that she made a purchase, entered text, or took any actions other than simply opening the webpage and then closing it.”

The ruling allows Daghaly to amend her complaint and flesh out allegations about her activity on Bloomingdales.com.

The 9th Circuit ruling stemmed from a battle dating to January 2023, when Daghaly alleged in a class-action complaint that Bloomingdale's used “session replay” tracking technology to record website visitors' activity, including their “keystrokes, mouse movements, clicks, webpage locator data, and/or other electronic communications.”

“Session replay code intercepts activity of shoppers, browsers, consumers seeking refunds, and accidental visitors alike,” she alleged, adding that the technology allows website owners to view keystrokes that users typed but didn't actually submit to the website.

U.S. District Court Judge James Lorenz in the Southern District of California dismissed the complaint on the grounds that Bloomingdale's lacked the kind of connection to California that would warrant a lawsuit over online tracking in that state.

Daghaly then appealed to the 9th Circuit, which upheld the dismissal, but for different reasons. The appellate judges declined to rule on whether Bloomingdale's could be sued in California over online tracking, but instead said Daghaly failed to allege that she interacted with the website -- beyond simply visiting it.