CIPA & Wiretap Litigation
What is Session Replay?
Session replay is a website analytics technology that records a visitor's clicks, mouse movements, scrolling, and keystrokes so the session can be played back like a video — and a leading target of wiretapping lawsuits when it runs before consent.
Session replay tools — offered by vendors such as Hotjar, FullStory, Microsoft Clarity, and LogRocket — inject a JavaScript snippet that captures DOM changes and user interactions as they happen. Teams use the playback to diagnose UX problems, debug checkout errors, and understand why visitors abandon funnels. Used carefully, it is a legitimate and valuable optimization tool.
The privacy problem is what the recorder can sweep up. A replay script captures form fields as the visitor types, which can include names, addresses, email addresses, payment details, health-related search terms, and anything else entered on the page. Vendors provide masking and redaction controls, but they are configuration options — sites that deploy the default snippet frequently record more than they intend.
Legally, session replay sits at the center of the CIPA litigation wave. Plaintiffs characterize the recording as an interception of the contents of a communication in transit under Penal Code section 631, with the replay vendor cast as a third-party eavesdropper and the website as its accomplice. Similar suits have been filed under Florida, Pennsylvania, and Massachusetts wiretap laws. Exposure under CIPA is $5,000 per violation with no proof of harm required.
Two mitigations matter most: consent-gate the replay script so it never records a visitor who has not opted in, and configure aggressive masking so sensitive fields are never captured even after consent. Auditing what your replay vendor does with recordings — whether it uses them for its own product improvement — is the third, because vendor data use is what pushes a tool from 'tape recorder' to 'eavesdropper' in court.
Why it matters for eCommerce
Checkout pages are exactly where session replay is most useful and most dangerous: they contain the highest concentration of personal data on your site. An unmasked replay script on checkout captures payment and address fields keystroke by keystroke, which is the fact pattern in the worst session-replay complaints. Gate the script behind consent and mask every input by default.
Frequently asked questions
- Is session replay illegal?
- No — but running it without consent invites wiretapping claims in all-party-consent states like California, and recording unmasked personal data can violate GDPR and state privacy laws. Consent-gating plus field masking makes replay defensible.
- Does session replay capture passwords and credit card numbers?
- Reputable vendors mask password fields and payment inputs by default, but custom form fields and misconfigured setups can leak them. Treat masking as something to verify with a test recording, not something to assume.
- Which laws are cited in session replay lawsuits?
- Most commonly CIPA section 631 in California, along with the Florida Security of Communications Act and Pennsylvania's Wiretapping and Electronic Surveillance Control Act. Federal VPPA claims appear when replay or pixels run on video pages.
Related terms
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