There is no one single way to design a website.
The very same non-technical folks that you allege are misled here also have no clue how buttons work on a site either... it's all magic to those folks. Are we not supposed to do any logging now? How is it any different to only log when a user presses a button?
Your TV tracks what shows you watch, what buttons you press, how often you skip commercials, etc. Your smart fridge tracks how often you use the ice feature, your car tracks how often you drive aggressively, etc. No one is alleging these devices are "wiretapping"...
It shouldn't matter the collection method. The point is that you'd be collecting these keystroke and mouse events as they happen in an environment that I, the user, may believe they are not leaving my system.
> The very same non-technical folks that you allege are misled here also have no clue how buttons work on a site either... it's all magic to those folks. Are we not supposed to do any logging now?
That's a fair point. Some users will have no idea at all what data they're sending to the likes of Facebook, for example; it's just a magic box that shows them photos of their grandkids. The test here is given the average person's understanding of the products they are using, is it reasonable to assume the data being generated is not leaving your local system? I think even the average user would assume mouse movements are not being sent away to reconstruct their session on a website down to that level of granularity. You may disagree but that's the tricky issue here: where does the line of an expectation of privacy get drawn? From a technical point of view, I'd argue it's at the separation of client-side and server-side interactions where anything not needed for the functioning of the product on the client-side remains client-side. Hence, something like my mouse movements on a run of the mill website for analytics is across that line but something like mouse movements in a multiplayer video game is not.
> Your TV tracks what shows you watch, what buttons you press, how often you skip commercials, etc.Your smart fridge tracks how often you use the ice feature, your car tracks how often you drive aggressively, etc.
The point is where does this data get sent to? Admittedly I don't know exactly what data my car collects on my driving habits, but I'm pretty sure it doesn't leave the car in that it doesn't have an Onstar-like system installed in it.
If this data is used to essentially be an observer sitting over my shoulder without telling me when I don't have a reasonable expectation that it's happening then, yes, that's a violation of an expectation of privacy. The fact that all of this is legal really demonstrates how far behind laws are to the issue of data collection around usage of services and products.
---
edit: thread depth limit reached so I'll just say the following:
> Your car collects huge amounts of data about your driving habits. A Tesla, for example, might auto-report that data, but your "dumb" car also provides that data to an ODBII reader. In fact, that was the premise for those Progressive (I think) Car Insurance things they wanted you to plug into your car to "prove" you were a safe driver.
Right, and the difference is that the data provided through the OBD port requires me to physically plug something in and upload it elsewhere. I have control over that data. This is different from these websites that are collecting data like my mouse movements and immediately sending it off without notification or consent.
Again, if I designed my site to use a websocket instead of event handlers - the result is the same. Are we proposing we outlaw this? Or inversely, placing in law the only accepted method of website design? That seems foolhardy to me.
Your car collects huge amounts of data about your driving habits. A Tesla, for example, might auto-report that data, but your "dumb" car also provides that data to an ODBII reader. In fact, that was the premise for those Progressive (I think) Car Insurance things they wanted you to plug into your car to "prove" you were a safe driver. Any time your car is in for service... this data can be freely read. Your insurance company will also obtain this information after an accident in some cases as well.
We use mouse/key movements for a lot of things, not just reconstructing sessions. Google's newer "I'm not a Robot" captcha's just ask you to click a single button for example. A ton of anti-fraud/abuse systems do this as well, particularly for credit card checkout forms (anti-bot measures). The ramifications of a bad decision for this suit are huge.
yes?
I can stab my knife into flesh all day, if that flesh is another human being it turns out it's outlawed.
There is no requirement that the law be applied consistently for some action. Insider Trading doesn't imply all trading is illegal. Being able to pop off fireworks doesn't imply doing so anywhere is legal.
Even the existing ADA laws do not specify technical details (which is why they are abused in frivolous lawsuits to often).
Your question is essentially "well what if I use a knife, because knives can be used for skinning, which is a legitimate use!".
It doesn't work that way.
In a technical setting, we can't even reliably describe how things will operate 5 years from now. Imagine a law that specified how frames were to operate... and now no one uses frames.
Just imagine a law that says "no tracking". What is tracking? How is it done? How do we know it when we see it? All of this must be defined... and these definitions are fuzzy and change rapidly.
The ADA law specifically says you must make your website accessible... but fails to specify what accessible even means in a modern setting. That's the pitfalls of trying to regulate how things are designed in a technical setting. Perhaps it's possible, but I have not yet seen a good law that made an attempt.
No, actually, don't. I reject everything about your premise.
"What even IS ACCESSIBILITY, OMG, you can't explain that!?!?!".
I mean ... maybe YOU can't, but plenty of people can.
So no, it is not easy to define or describe. There is an incredible amount of detail that must be hammered out to make it easy for everyone to become compliant.
We can also reference the EU's GDPR, or California's CCPA/CPRA. All of which are struggling to actually clearly define what they mean. What is an essential cookie? What does it mean to sell someone's personal data? Neither are what you might actually believe...
You can reject it all you want, but that does not change the reality I'm afraid.
The point I was making above was that there's a difference between purely client-side events like mouse movements and keystrokes and server-side events like button clicks and page requests. This may be a trivial difference for most websites, but I have an expectation of privacy around client-side events. Collecting them without the user's consent violates that regardless of the technical mechanism of implementation of that collection.
> Your car collects huge amounts of data about your driving habits. A Tesla, for example, might auto-report that data, but your "dumb" car also provides that data to an ODBII reader. In fact, that was the premise for those Progressive (I think) Car Insurance things they wanted you to plug into your car to "prove" you were a safe driver.
Right, and the difference is that the data provided through the OBD port requires me to physically plug something in and upload it elsewhere. I have control over that data. This is different from these websites that are collecting data like my mouse movements and immediately sending it off without notification or consent.
Sort of like how Apple gave users the ability to consent and they overwhelmingly withheld it (to the chagrin of FB).
If someone learns they're watched via cameras while in a grocery store, they may not be happy about it but they'll also generally recognize they're on _STORE PROPERTY_.
The key difference here is that this is being done on the _USERS_ property and you're acting as if they shouldn't have to right to withhold that consent.
---
Everyone accepts that an employer may look through company emails of its employees because it goes through company equipment.
These same companies then have the unadulterated gall to turn around and try and claim they have those very same rights on _OTHER PEOPLES EQUIPMENT_.
They're laying claim to other peoples compute.
If I consent to have someone use my compute for the operation of their website on my device and they decide to start recording tracking information, it's theft.
There is no dichotomy here, it's possible to consent to one use and not another.
Server logs will of course tell the operator what buttons are being clicked on and which pages are being requested. But once those pages are on my computer, I disagree, I do have an expectation of privacy around my mouse movements and keystrokes on my own computer. If I choose to send those to some third party server so be it, but having those collected without consent is a problem.
As engineers we may assume this is being done regardless and accept it as a reality of the web, but I'd imagine the average person would be quite surprised to see what is a recording of their browser window reconstructed without being informed that was happening. They may rightful have that expectation of privacy here, which is being broken by these tools.
> Also, it's not a recording of their screen that is being taken, but rather it's mouse coordinates and keystrokes which then re-assemble a replay of the actions. Just like a video game replay.
It doesn't matter what method is taken to generate a video if the end result is the same as if you were recording my actual browser window.