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.
This is an evolving area of law that will likely change in the near future. If you have any questions regarding the requirements of the Pennsylvania Wiretap Act, please do not hesitate to contact us.