Last week the Third Circuit reversed a summary judgment ruling in favor of Harriet Carter Gifts and NaviStone for alleged violations of Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, or WESCA. See Popa v. Harriet Carter Gifts, Inc., Case No. 21-2203, 2022 WL 3366425 (3rd Cir. Aug. 16, 2022). This lawsuit is one of many recent putative class actions attempting to apply decades-old wiretapping laws against websites and their service providers. The named plaintiff is a consumer that allegedly shopped on Harriet Carter Gifts’ website while NaviStone’s marketing software was installed on the website. Plaintiff argued that defendants violated WESCA by simultaneously sending her interactions with Harriet Carter’s website to NaviStone.
The district court granted summary judgment in favor of the defendants, holding that there was no interception as a matter of law because NaviStone was a direct recipient of plaintiff’s communications. In reaching this conclusion, the court relied on Pennsylvania state court cases involving undercover law enforcement who were not found liable for wiretapping claims when they were the direct recipients of the communications, even if not the intended recipients. The district court also held that even if there had been an interception, it occurred not in Pennsylvania, but rather in Virginia where NaviStone’s servers were located.