Target Tracks Customers' Clicks, Social Media Sharing of Marketing Emails: Class Action

Plaintiff Kiloh Smith, a Phoenix resident, “frequently opened emails” from Target from August 2020 to last month, and each time he did, the big box retailer “procured his sensitive email information,” said the complaint. Information included the time and place he opened and read the messages; how long he read them; his location, email client type, IP address and device information; and whether and to whom emails were forwarded to, the complaint said. Smith never gave Target consent to “procure his private email messages,” it said.

The Arizona law prohibits a person from “procuring or conspiring with another to procure ‘a telephone record’ of residents without consent” and from procuring any “’communication service record’ (including email records) of ‘any resident of this state without the authorization of the customer to whom the record pertains, or by fraudulent, deceptive, or false means,’” the complaint said. The federal counterpart to the Arizona law, the Telephone Records and Privacy Protection Act, doesn’t include a private right of action, but the Arizona legislature does allow residents to pursue civil remedies for violations, said the complaint.

Despite Arizona’s law prohibiting the practice of embedding trackers in email “without first obtaining customers’ consent,” companies still embed spy pixels in marketing emails, the complaint said. The complaint quoted a 2022 ZDNet article calling tracker pixels in emails an "endemic privacy concern.”

Target uses its own spy pixel to track when customers open their emails, and it also hides trackers within images embedded in emails through tracking pixels from Adobe subsidiary Scene 7, alleged the complaint. Adobe’s Campaign product then enables Target to track messages sent and the behavior of recipients such as opening emails, clicking on links and unsubscribing, it said.

Through Adobe tools, Target uses the spy pixel to “track the reception of messages and the activation of the links inserted in the message content to better understand the behavior of recipients” and to create “tracking logs” of recipient activity, the complaint said. Adobe also creates tracking reports for Target, providing statistics on “opens, clicks and transactions” that let Target track “the marketing impact of the delivery,” by showing the list of pages visited following a delivery, it said.

Adobe “combines the key indicators for tracking the behavior of recipients upon receiving the delivery such as open, click-through rates and click streams,” the complaint said. Target can access the logs to see “specific recipient behavior,” alleged the complaint. In delivery reports from Adobe, Target can view tracking statistics about its customers’ “sharing to social media, statistics on sharing activity, hot clicks, tracking statistics, … user activities, … [and] delivery statistics,” it said, citing Adobe documentation.

Smith was “unaware that tracking pixels were embedded in” Target emails, since the retailer doesn’t inform users that it does so, the complaint said. Target never received consent from Smith or the class to use spy pixels, the complaint said.

Smith seeks actual damages or damages of $1,000 for each violation of the Arizona law, damages equal to the sum of profits Target made for each violation, injunctive relief requiring Target to comply with the Arizona law, plus attorneys’ fees, legal costs and pre- and post-judgment interest. Target didn’t comment Wednesday.