These filings typically allege that companies use such software tools to record users’ interactions with a website without first obtaining users’ consent, thereby violating the wiretapping, eavesdropping, or interception provisions of various state laws.
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As a spate of recent decisions makes clear, companies conducting e-commerce may be subject to liability under state wiretap laws for their use of software designed to track consumer.
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.
In Popa v. Harriet Carter Gifts, the plaintiff visited the retailer’s website which contained code that sent an HTTP GET request to third party marketer NaviStone. The Third Circuit held the application of Pennsylvania’s Wiretapping and Electronic Surveillance Control Act.