United States of America: Issued US Court of Appeals ruling on use of web analytics under the Pennsylvania Wiretap Act (Popa v. Harriet Carter Gifts Inc.)

On 16 August 2022, the US Court of Appeals for the Third Circuit issued its opinion on the case Popa v. Harriet Carter Gifts Inc. In 2018, the claimant, Ashley Popa, added to her online cart an item from Harriet Carter Gifts’ website without completing the purchase. In this process, Harriet Carter was using a third-party marketing service named NaviStone to track Popa’s activities on the website. In 2019, Popa sued both Harriet Carter and NaviStone for violation of Pennsylvania’s Wiretapping and Electronic Surveillance Control Act (Wiretap Act). The District Court allowed the Wiretap Act claim to go to summary judgment. Although the Wiretap Act prohibits intercepting wire, electronic, or oral communications without prior consent, the Pennsylvania Superior Court found that the defendants could not have “intercepted” Popa’s communications, because NaviStone was considered a “party” to the electronic conversation since it was a direct recipient of communications. On appeal, the US Court of Appeals held that using web analytics to track visitors actions on websites could violate the Wiretap Act and that NaviStone being a direct recipient of Popa’s communications did not mean that it could escape liability under the Wiretap Act. The Court found that it was unclear whether an interception had occurred and whether consent had been provided in this case. As a result, the Court quashed the summary judgment and remanded the case.