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United States Court of Appeals for the Third Circuit
June 8, 2022, Argued; October 18, 2022, Opinion Filed
[*124] AMBRO, Circuit Judge
This case began with a quest for pet stairs. Searching for that item, Ashley Popa browsed the website of Harriet Carter Gifts, added a set of stairs to her cart, but then left the website without making a purchase. That might have been the end of it. But she later discovered that, unbeknownst to her as she was browsing the website, a third-party marketing service Harriet Carter was using, NaviStone, tracked her activities across [**2] the site. This, Popa believed, violated Pennsylvania's anti-wiretapping law, and she sued both entities (collectively, the "Defendants") in a Pennsylvania court (though they later removed the case to federal court).
Pennsylvania's Wiretapping and Electronic Surveillance Control Act ("WESCA" or "Act"), 18 Pa. C.S. § 5701 et seq., prohibits the interception of wire, electronic, or oral communications, which means it is unlawful to acquire those communications using a device. The District Court granted summary judgment for NaviStone and Harriet Carter. It held NaviStone could not have "intercepted" Popa's communications because it was a "party" to the electronic conversation. Alternatively, it ruled that if any interception did occur, it happened outside Pennsylvania's borders; thus the Act did not apply. As we read Pennsylvania law differently on both holdings, we vacate the Court's ruling and remand.
In 2018, Ashley Popa used her iPhone to view Harriet Carter Gifts' website. A pop-up window asked for her email address, which she provided. She searched for pet stairs, added a set to her cart, and began (but never completed) the checkout process.
There was more to that online interaction than met the [**3] eye. As Popa clicked links, used the search function, and tabbed through form fields on the website, her browser simultaneously communicated with two entities: Harriet Carter (this Popa obviously knew) and a third-party marketing service, NaviStone, that it was using (this Popa did not know). Her communications with Harriet Carter told the website what to display on her screen and what to place in her cart. The messages to NaviStone alerted it to how Popa was interacting with the website (which pages she visited, when she filled in an email address, when she added an item to her cart, and so on).
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
52 F.4th 121 *; 2022 U.S. App. LEXIS 28799 **
ASHLEY POPA, individually and on behalf of all others similarly situated, Appellant v. HARRIET CARTER GIFTS, INC., a Pennsylvania corporation; NAVISTONE, INC., a Delaware corporation
Prior History: [**1] Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Civil Action No. 2-19-cv-00450). District Judge: Honorable William S. Stickman, IV.
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Communications Law, Federal Acts, Wiretap Acts, Evidence, Illegally Obtained Evidence, Eavesdropping, Interception & Wiretapping, Interception of Information, Scope, Wiretapping, Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Judgments, Entitlement as Matter of Law, Appellate Review, Standards of Review, Appeals, Standards of Review, De Novo Review, Genuine Disputes, Governments, Courts, Judicial Precedent, Elements, Local Governments, Employees & Officials, Exceptions, Legislation, Interpretation, Energy & Utilities Law, Electric Power Industry, Electricity Distribution & Transmission, Electricity Generation, Reviewability of Lower Court Decisions, Preservation for Review