POPA v. HARRIET CARTER GIFTS, INC.
2:19-cv-00450
| W.D. Pa. | Mar 24, 2025Background
- Ashley Popa, on behalf of herself and similarly situated individuals, sued Harriet Carter Gifts, Inc. and NaviStone, Inc., alleging unauthorized interception of electronic communications while she browsed Harriet Carter’s website.
- The case centers on whether the defendants' conduct violated Pennsylvania’s Wiretapping and Electronic Surveillance Control Act (WESCA), particularly regarding interception of web activity by third-party marketing software (NaviStone).
- Initially, the district court granted summary judgment for defendants, finding no unlawful interception and that the action was outside WESCA’s territorial reach.
- The Third Circuit reversed, holding the direct-party exception did not preclude liability and remanded for fact-finding on (1) whether Popa consented via the website’s privacy policy, and (2) the location of the alleged interception.
- On remand, after further discovery, defendants renewed summary judgment focusing on the sufficiency and effect of the privacy policy and consent.
- The court ultimately ruled for defendants, holding Popa constructively consented to the data collection disclosed by the Privacy Statement posted on the website.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Popa consent to the interception under WESCA? | Popa did not give actual or constructive consent since she never read or agreed to the privacy policy. | Browsing while privacy policy was posted implied consent; reasonable notice was provided. | Popa constructively consented as privacy policy was sufficiently presented and described third-party data collection. |
| Was NaviStone an "interceptor" under WESCA or simply Harriet Carter’s agent? | NaviStone was a third party she did not knowingly communicate with. | NaviStone acted as Harriet Carter’s agent, so should not be treated as a third-party interceptor. | Third Circuit rejected the agent exception, but held case turned on consent, not party status. |
| Does the nature of the internet imply broad consent to third-party tracking? | Broad tracking without explicit consent is outside users’ reasonable expectations. | Widespread use of cookies and third-party code means users implicitly consent to such data collection. | Court found no blanket implied consent from internet usage alone, but the privacy policy gave constructive notice. |
| Was the privacy policy sufficiently conspicuous and accessible to impart constructive notice? | The policy wasn’t adequately prominent or clear to provide notice or consent. | Footer link and dropdown placement were sufficient, matching industry standard, and clearly labeled. | Privacy Statement was reasonably conspicuous and accessible; constructive notice and consent found. |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (Summary judgment standard—material facts and viewing evidence favorably.)
- Celotex Corp. v. Catrett, 477 U.S. 317 (Summary judgment framework.)
- Commonwealth v. Byrd, 235 A.3d 311 (Pa. 2020) (Objective standard for consent under WESCA—actual knowledge not required, only reasonable notice.)
- Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. Ct. 2001), aff’d, 837 A.2d 1163 (Pa. 2003) (Implied consent for internet communications under WESCA; reasonable user standard.)
- In re Nickelodeon Consumer Priv. Litig., 827 F.3d 262 (3d Cir. 2016) (Internet users’ diminished privacy expectations.)
- Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014) (Enforceability of browsewrap agreements; conspicuousness of terms.)