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Retailers. Banks. Healthcare systems. E-commerce platforms. Across industries, live chat, session replay software, and website analytics have become standard tools for customer engagement. These technologies help businesses respond to consumer inquiries in real time, improve website functionality, reduce cart abandonment, train customer service teams, and resolve disputes.
For companies operating nationally, the landscape is shifting quickly. Most businesses are already familiar with litigation under California's Invasion of Privacy Act (CIPA), which has become one of the highest per-violation risk statutes in the country for website-based claims. Florida is now emerging as a growing and unsettled litigation front under its own wiretapping statute, and other states are watching closely. From a compliance standpoint, businesses should treat Florida website disclosures and consent mechanisms with the same seriousness they now apply in response to CIPA, recognizing that proactive risk mitigation is far less costly than defending statutory damages claims after the fact.
The Florida Security of Communications Act
In Florida, these commonplace tools are increasingly being challenged under a statute enacted in 1969 — long before the internet existed. The Florida Security of Communications Act (FSCA), codified in Chapter 934 of the Florida Statutes, prohibits the intentional interception of "wire, oral, or electronic communications" without the prior consent of all parties. Florida is a two-party consent state. The statute was designed to prevent covert surveillance: hidden tape recorders, wiretapped phone lines, and unauthorized eavesdropping. It was not drafted with website analytics, customer service chatbots, or session replay software in mind. Yet plaintiffs' attorneys have filed hundreds of lawsuits alleging that modern website technologies violate the FSCA by "intercepting" communications between website visitors and businesses.
How Standard Website Tools Became Litigation Targets
1. Live Chat Recording
Live chat features, often recorded for quality assurance, dispute resolution, compliance monitoring, or AI training, are now being characterized as unlawful electronic interceptions when prior express consent is not allegedly obtained. Plaintiffs argue that a website visitor engaging in live chat is engaged in an "electronic communication," and recording or storing that chat without explicit consent violates the FSCA.
2. Session Replay Software
Session replay tools capture user interactions such as mouse movements, scrolls, clicks, and form entries. Businesses use this data to identify technical problems and improve user experience. The litigation theory asserts that these tools intercept communications between the visitor and the website itself.
3. Analytics and Tracking Tools
Standard analytics platforms that track navigation patterns, page views, and site interaction have likewise been targeted. Plaintiffs argue that tracking how a visitor interacts with a site constitutes interception of electronic communications, particularly where there is no explicit, real-time consent mechanism.
The Litigation Pattern
These cases follow a familiar pattern seen in ADA, TCPA, CIPA, and biometric privacy litigation:
- Nearly identical complaints filed by a small number of firms
- Heavy reliance on statutory damages
- Minimal allegations of concrete consumer harm
- Settlement demands calibrated below the cost of full defense
Under the FSCA, statutory damages may be awarded at $1,000 per violation or $100 per day, whichever is greater, along with attorneys' fees. In a class context involving thousands of website users, the theoretical exposure can escalate rapidly. Even in individual cases, fee-shifting risk alone can drive significant settlement pressure. Adding to the uncertainty, many cases resolve before courts issue definitive rulings. Where courts have addressed these issues, results have been mixed. Some have dismissed claims where disclosures were deemed sufficient. Others have allowed cases to proceed past the pleading stage. This lack of uniformity is precisely what fuels ongoing filings.
Why Privacy Policies Alone May Not Be Enough
Many businesses assume that general privacy policy disclosures provide sufficient protection. That assumption is increasingly being tested. Plaintiffs argue that buried privacy policy language stating that a business "may collect website usage data" or "may record customer service interactions" does not constitute the "prior consent of all parties" required under Florida's two-party consent framework. Whether passive website disclosures satisfy statutory consent requirements remains an unsettled legal question. Until appellate clarity emerges, or the Legislature acts, businesses face continued litigation risk.
Industries Being Targeted
The defendants in these suits are not engaging in covert surveillance. They are using standard commercial website tools. Industries increasingly targeted include:
- Online retailers using session replay to optimize checkout
- Banks and financial services firms improving digital banking interfaces
- Healthcare providers offering appointment scheduling and inquiry chats
- SaaS and technology companies tracking user interaction
The common denominator is meaningful website traffic combined with routine data collection tools.
The Broader Trend
Florida's website wiretapping litigation reflects a broader national trend: Legacy statutes drafted for analog surveillance are being applied to digital commerce. Until appellate courts provide consistent guidance or legislative clarification narrows the scope of the FSCA in the website context, consumer-facing businesses must operate in a legally unsettled environment.
Live chat and analytics tools are not fringe technologies. They are central to modern customer engagement. But in Florida, businesses deploying them should do so thoughtfully, with an understanding that yesterday's wiretapping statute is today's website litigation vehicle.
While no compliance strategy eliminates risk entirely, proactive steps can materially reduce exposure. Businesses should (1) audit the use of website technology, including evaluating the business necessity or value of certain technology; (2) implement categorization, notice, and consent mechanisms to manage website technology; (3) review website privacy notices and related terms of use; and (4) review vendor agreements with website technology providers; and (5) evaluate change control processes for the implementation of technology that pose risk under the FSCA.
An ounce of prevention is (still) worth a pound of cure.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
