Litigation: Latest Legal Blogs and News
The United States Court of Appeals for the Third Circuit Expands the Application of the Pennsylvania Wiretap Act
On August 16, 2022, in Popa v. Harriet Carter Gifts, Inc., the United States Court of Appeals for the Third Circuit held that using web analytics to track visitors actions on websites could violate the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”). This is important because many businesses use web tracking tools, such as cookies, to gather data from their customers. This data may then be used for both targeted marketing and optimizing websites.
These businesses may now face suit for using industry standard web analytics tools. In fact, Houston Harbaugh is already aware of class action lawsuits that have been filed since the Popa decision. The breadth of the decision reaches even out-of-state parties. The Third Circuit found that the Pennsylvania Wiretap Act applied even though the website in question was hosted outside of Pennsylvania. The court reasoned that the cookie was placed on Popa’s phone in Pennsylvania, and that cookie rerouted Popa’s information to the out-of-state server. Effectively, the cookie “tapped” the device in Pennsylvania.
On October 18, 2022, the Third Circuit amended its prior opinion. The amended opinion upheld the original ruling and reinforced that consent is required to intercept a communication. However, the amended opinion still emphasizes that actual knowledge is not required to consent to tracking. Instead, the test is whether the person knew or should have known that their actions were being tracked. The Third Circuit further stated that it was specifically declining to determine whether a privacy policy located on the website was sufficient to establish implied consent. The implication here is that a posted privacy policy, even if not read by a website visitor, may insulate a business from a wiretap claim.
Based on the Papa case, businesses should immediately take steps to protect themselves. For example, a privacy policy should be posted on the website detailing the information being gathered. Additionally, prior to any data being gathered, visitors should be provided with a popup notification requiring consent to the privacy policy.
This is an evolving area of law that will likely change in the near future.
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The litigation attorneys at Houston Harbaugh, P.C., are accomplished business trial lawyers, providing comprehensive support in litigation across a broad spectrum of matters throughout Pennsylvania, West Virginia, Ohio and other jurisdictions upon a special admission basis. Our clients are regional and national small, medium and large companies and individuals who seek well planned and aggressive, but cost effective litigation. We counsel, we budget, we have a deep bench, we act quickly when needed and we have experienced trial lawyers who know the courts and bench. We serve regularly as local counsel for some of the largest law firms in the country when they have matters in this region.
Henry M. Sneath - Practice Chair
Co-Chair of Houston Harbaugh’s Litigation Practice, and Chair of its Intellectual Property Practice, Henry Sneath is a trial attorney, mediator, arbitrator and Federal Court Approved Mediation Neutral and Special Master with 98 trial verdicts and extensive federal and state court trial experience in cases involving commercial disputes, breach of contract litigation, Artificial Intelligence (AI), intellectual property matters, patent, trademark and copyright infringement, trade secret misappropriation, DTSA claims, cyber security and data breach prevention, mitigation and litigation, employment and restrictive covenant litigation, probate trusts and estates litigation, construction claims, eminent domain, professional negligence lawsuits, pharmaceutical, products liability and catastrophic injury litigation, insurance coverage, and insurance bad faith claims. DTSALaw® Business Litigation. Pittsburgh Strong.®
Samuel H. Simon - Practice Chair
As co-chair of Houston Harbaugh’s Litigation Group, Sam focuses his practice on commercial/business litigation. Sam regularly represents clients in the construction, manufacturing, oil and gas, and wholesale/retail/ distribution industries, as well as individuals in matters such as:
- Construction litigation
- Environmental litigation
- Breach of contract disputes
- Oil and gas litigation
- Negligence
- Restrictive covenants (non-compete agreements)
- Civil rights
- Collections/creditors’ rights
- Lease disputes
