FullStory Failed to Prevent Hey Favor From Using Software That Collects Private Data: Plaintiff
FullStory “failed to take steps" to prevent Hey Favor from using its software in a way that wouldn't collect sensitive health information, said plaintiff Jane Doe's opposition Friday (docket 3:23-cv-00059) to FullStory’s motion to dismiss a privacy case in U.S.…
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District Court for Northern California in San Francisco. Doe's January suit alleged Hey Favor knowingly and intentionally sent personally identifiable information about her medical history to Meta, TikTok and analytics company FullStory. Doe dismissed all claims against Hey Favor in July (see 2308010066); the healthcare platform filed for Chapter 11 bankruptcy protection in April. Claims remain against Meta, TikTok and FullStory. Whether the actions were intentional is a question of fact not appropriate for a determination of motion to dismiss, said the filing. The defendant’s argument that its session play software on the Favor platform is “not a device,” is “illogical,” said the opposition, citing In re Meta Pixel Healthcare Litigation, in which the court agreed Pixel software is a device under section 632(a) of the California Invasion of Privacy Act. Doe alleges “FullStory designed and created its session replay software for the very purposes of intercepting the contents of users’ communications with websites and apps” and provided the software to Favor to incorporate on its platform. Once FullStory intercepts the data, “it uses it to provide analytics services to its clients such as Favor,” said Doe: “There is no question this conduct is intentional.” Courts “consistently recognize that individuals have a reasonable expectation of privacy in their medical information input on websites or apps that incorporate tracking technologies,” said the opposition, citing Doe v. Regents of the University of California. “FullStory intercepted health data and prescription requests she entered into the Favor Platform,” the opposition said. FullStory’s characterization of the data at issue as “innocent ‘online activity’ or ‘unspecified movements on a website’ is a red herring,” said Doe. The case involves her communications with a telemedicine company that prescribes and provides reproductive health related items, “not generic ‘online activity,’” it said. The court should allow Doe’s unjust enrichment claims to go forward, in addition to her wiretapping claims, as it did in In re Meta Pixel Healthcare Litigation, it said.