Siding with The Gap, a federal judge has tossed a privacy lawsuit over allegations that the clothing retailer contracted with a third party to collect data about customers'
interactions with marketing emails.
The ruling, issued Tuesday by U.S. District Court Judge Haywood Gilliam, Jr. in the Northern District of California, comes in a class-action
brought by California resident Efren Ramos.
He alleged that The Gap sent him marketing messages containing software provided by the tech company Bluecore; that software
allegedly enabled Bluecore to collect data about email recipients' interactions with the emails -- including what particular images recipients clicked on. (Bluecore was not a party to the
lawsuit.)
Among other specific allegations, Ramos said Bluecore embedded unique URLs in product images (such as an image of a shirt) within the marketing emails, and then
captured detailed information from recipients when they clicked on one of those products.
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The complaint included claims that The Gap violated California's wiretap law, which
prohibits the interception of the content of electronic communications, without all parties' consent.
Gilliam threw out the complaint, ruling that even if the allegations were
proven true, they wouldn't show that The Gap broke any laws.
Among other reasons for the dismissal, Gilliam essentially said capturing information about which product a
recipient visited doesn't amount to intercepting the "contents" of a communication.
"Plaintiff contends that clicking on the URL is the equivalent of a user saying, 'I am
interested in learning more about this shirt, please send me more information,'" Gilliam wrote.
"The Court simply is not convinced by plaintiff's characterization of the click
of the embedded URL as a communication between plaintiff and defendant," he added.