NEWS & INSIGHTS

Our firm previously reported on the United States District Court for the Western District of Pennsylvania’s decision in Popa v. Harriet Carter Gifts, Inc., which granted summary judgment to the defendants on Pennsylvania wiretap claims arising from website tracking technology that allegedly violated Pennsylvania’s Wiretap and Electronic Surveillance Control Act (“WESCA”). That case has now been resolved on appeal – but not on the merits. The reason? The Third Circuit in Popa v. Harriet Carter Gifts, Inc., held that the plaintiff lacked Article III standing to pursue her claims in federal court.

While the appeal was pending, the Third Circuit addressed Article III jurisdiction issues in Cook v. GameStop, Inc.  In Cook, the court held that a plaintiff who “moved her mouse, clicked links, typed in a search bar, and added a product to her ‘cart,’” but “did not input any sensitive or personal information” did not suffer a sufficiently concrete injury-in-fact to establish standing to pursue the claim in federal court. The court distinguished the plaintiff’s conduct in Popa from cases in which it had found an injury in fact under WESCA. In those cases, for example, a website operator promised not to collect children’s personal information but did so anyway, or Google bypassed Safari and Internet Explorer privacy settings to track users by creating a web browser cookie. The plaintiff’s conduct in Popa, however, did not involve the same level of personal-information collection.

Applying Cook, the Third Circuit in Popa found that Popa “did not suffer a ‘cognizable Article III harm… sufficient to avail herself of federal jurisdiction.” Accordingly, the Third Circuit vacated the District Court’s order granting summary judgment and remanded the case to the District Court with instructions to remand the action to state court.

The Third Circuit did not reach the merits of whether Harriet Carter’s website tracking practices violated Pennsylvania’s wiretap statute. Instead, the Third Circuit held that the case belongs in state court, where it may proceed without the Article III standing requirements that govern federal courts. This ruling underscores the Third Circuit’s stringent approach to Article III standing in cases involving website tracking technologies. Plaintiffs who browsed a website and viewed products – but did not enter sensitive personal information such as names, contact details, payment information, or other identifying data –may find it difficult to establish the concrete injury needed to invoke federal jurisdiction.

Although a win for businesses, they are not in the clear. While similar conduct as in Popa is not actionable in federal court, claims under WESCA remains actionable in state court. Pennsylvania state courts have not yet explored in detail what constitutes an actionable “injury in fact” for civil claims under WESCA for websites, but business owners should expect additional “tester” cases exploring the issue to appear in state court in the future.

While this case is on remand through the state courts, we will continue to provide updates as this issue and related cases evolve.