Ashley Popa v. Harriett Carter Gifts, Inc.

Pittsburgh, Pennsylvania personal injury lawyer represented Plaintiff, who sued Defendant for violating the Pennsylvania Wiretapping and Electronic Surveillance Control Act.



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 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 grant of summary judgment

and remand.



I. Background



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

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).



The testimony and evidence are technical about how

these communications were sent, but the important points for

our purposes are not. When Popa—or any other user at that

time—loaded the Harriet Carter website, her browser sent a

"GET request” to the Harriet Carter server. The server

responded by sending HTML code to the user's browser. The

browser interpreted this code to allow the website to appear on

the user's screen. Harriet Carter's HTML code also included

some JavaScript that told the user's browser to send another

GET request to NaviStone's server in Virginia. That server

responded by sending its own "OneTag” code to Popa's

browser. Once the browser loaded the OneTag code, two

things happened. First, the code placed cookies on the user's

browser so that her activity on the webpage had an associated

visitor ID. Second, the code told the user's browser to begin

sending information to NaviStone as she navigated through the

website, such as communicating that the user had clicked the

"add to cart” button or tabbed out of a form field. NaviStone

could later use this information to identify which of Harriet

Carter's customers may be receptive to promotional mailings.

In 2019, Popa sued Harriet Carter and NaviStone over

their use of the OneTag software. She brought two counts: a

claim for violation of the WESCA and a common law claim

for invasion of privacy. The District Court dismissed the

common law claim but allowed the WESCA claim to go to

summary judgment. As noted, on summary judgment the

Court ruled for the Defendants. Popa now appeals.

Vacated and reversed.