An oft-discussed topic on this blog is the rise in lawsuits asserting illegal wiretapping claims against companies that use technology on their websites to track consumer interactions. Recently, a Pennsylvania federal judge was tasked with determining whether Plaintiff’s wiretap claim could withstand a Motion for Summary Judgment. Below, we discuss the case and the Court’s decision in detail.
Disclosures in Privacy Policy Defeat Plaintiff’s Pennsylvania Wiretap Claim
In Popa v. Harriet Carter Gifts, Inc., and Navistone, Inc., Plaintiff alleged that defendants, Harriet Carter Gifts, Inc. (“Harriet Carter”) and Navistone, Inc. (“Navistone”), violated the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“WESCA”) by unlawfully intercepting her data while she shopped online. In early 2018, Plaintiff visited Harriet Carter’s website, searched for pet stairs, added items to her shopping cart, and provided her email address as part of a potential purchase. At the time of her visit, Harriet Carter’s website had a privacy policy, labeled “Privacy Statement,” in the footer of its website, presented as a hyperlink in white font against a blue background. Among other things, the privacy policy disclosed that third-parties may be given access to the information Harriet Carter collects from consumers. Navistone, one such third-party, worked with Harriet Carter to develop customized JavaScript code that permitted the pages of Harriet Carter’s website to gather and send information directly to Navistone. After discovery, Defendants filed a Motion for Summary Judgment.
In evaluating this wiretapping claim, one of the primary questions for the Court was whether Plaintiff consented to Harriet Carter’s sharing of her information with third-parties, such as Navistone. Applying a “reasonably prudent person” standard, the Court held that Plaintiff implicitly consented to the alleged interception of her actions on Harriet Carter’s website. In granting Defendants’ Motion for Summary Judgment, the Court found that Harriet Carter’s privacy policy clearly: (1) states that it uses cookies on its website to track consumers’ activities; and (2) includes unequivocal language stating that Harriet Carter may share consumers’ information with third parties. Reviewing Plaintiff’s Pennsylvania wiretap claim, the Court stated that a “reasonably prudent person has a lower expectation of privacy on the internet than on, for example, a telephone, which lacks the entire system of trackers, cookies, and algorithms commonly, if not ubiquitously, implicated in the use of a website.” Because the subject privacy policy clearly alerted a reasonably prudent person to the fact that third parties may receive data from consumers who visit Harriet Carter’s website, the Court granted Defendants’ Motion for Summary Judgment on Plaintiff’s Pennsylvania wiretap claim.
What Does This Decision Mean For Your Online Business?
It should be noted that this decision viewed consent through the lens of 2018, which was when Plaintiff visited Harriet Carter’s website, and thus, gave rise to Plaintiff’s alleged Pennsylvania wiretap claim. In reaching its conclusion, the Court found it instructive that posting a privacy policy in the manner that Harriet Carter did was commonplace in 2018. Certainly, this is a favorable decision for the industry, but companies should be hesitant to rely exclusively on a hyperlink to their privacy policies as the means for obtaining consent to share consumer data with third parties.
Several states, such as California, Massachusetts, and Washington, have wiretapping statutes similar to that of Pennsylvania’s. Notwithstanding this favorable decision, online businesses should expect lawsuits alleging illegal wiretapping claims to continue to be filed. The attorneys at Klein Moynihan Turco (“KMT”) have been at the forefront of: (1) defending clients against federal and state consumer wiretapping claims; and (2) advising clients on how to comply with various federal and state wiretapping laws. In addition, our outstanding litigation defense team will use its robust experience to zealously defend your company if it is named as a defendant in a wiretapping lawsuit.
If you need assistance with defending a wiretapping lawsuit or updating your privacy practices and procedures, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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