Companies are increasingly fighting lawsuits that allege the recording of keystrokes and mouse movements is a violation of wiretapping laws.
PITTSBURGH – A Pennsylvania plaintiff will get a second shot at proving a website that monitors mouse movements and keystrokes violated the state’s wiretapping and electronic surveillance law.
The Superior Court on Oct. 23 reversed summary judgment for footwear retailer Clarks, which thought it had fended off a class action lawsuit by Raeleen Thompson brought under the Wiretapping and Electronic Surveillance Control Act (WESCA).
The law requires the consent of all parties for an interception or recording and imposes penalties when that doesn’t happen. Thompson complains that after searching for “sandals” on the Clarks website, she began receiving pop-up ads on Facebook for other Clarks items, and her lawsuit said her time was wasted because “Clarks” kept showing up as the top result in searches for sandals.
The issue for the Superior Court was whether the Clarks privacy policy was conspicuous enough to be considered consent by Thompson, and the record didn’t show that it was or wasn’t. The case was remanded to Washington County to address the problem.
“I think it will certainly draw the attention of the Plaintiff’s bar, but it’s not an ‘outright win’ for plaintiffs,” Katie Contino of Fisher Phillips in Philadelphia told the Pennsylvania Record.
“The court found that it couldn’t determine whether the privacy policy was reasonably conspicuous on the Defendant’s website, noting that the pleadings didn’t include a screenshot showing the link to the Privacy Policy. It vacated summary judgment and sent it back to the trial court for additional proceedings and did not enter a finding of liability against the company.”
These browsewrap lawsuits are becoming more and more common as companies have used “session replay” software like Content Square to record a website visitor’s activity. They have stumbled when showing plaintiffs suffered actual harm – something the federal Third Circuit noted earlier this year in a Pennsylvania case called Popa.
Fisher Phillips provides a map that shows California, Florida and Illinois have been the most popular destinations for digital wiretapping litigation, and Contino says state and federal courts haven’t been consistent with how they’ve handled similar issues.
“It does not surprise me that an intermediate appellate court in Pennsylvania is taking a different approach than California state courts or the Third Circuit, as we’ve seen judges in the same courthouse addressing the same issues come to completely different conclusions,” she said.
“There will only be consistency if state legislatures or Congress acts to make clear that these wiretapping statutes do not apply to internet communications.”
The Popa ruling and another called Cook in the Third Circuit said the plaintiff could not establish an injury if they didn’t input any sensitive information and therefore couldn’t bring a claim in federal court. The case was remanded to Lawrence County.
Popa is represented by the Pittsburgh class action firm Lynch Carpenter, as she was in an Allegheny County class action alleging Victoria’s Secret and Bath & Body Works printed off receipts that contained more than the last five digits of credit and debit card numbers. Class members received vouchers worth up to $15, and plaintiffs attorneys were awarded $3 million.
Lynch Carpenter also represents Thompson in the case against Clarks, which will now head back to Washington County. It remains to be seen whether the interception of Thompson’s mouse and keyboard will constitute an injury, as Superior Court judge Mary Murray wrote: “Indeed, the alleged infringement at issue here is of such low stakes that the Third Circuit has determined that, even if it technically constitutes a WESCA violation, it is not a legally cognizable injury sufficient to invoke Article III jurisdiction.”
Contino, who defends these types of cases, said most demand letters from class action lawyers attack small- and medium-sized businesses that then experience a significant financial burden if they want to fight in court. A simple payoff to the lawyers and plaintiff is often more practical.
She also concedes that ads like those targeted at Thompson are “a bit unnerving.”
“But what injury or damages did she experience?” Contino added. “It really strains credulity to think that she suffered an injury, without any evidence of damages, based on these facts. To me, it’s akin to a shopkeeper noticing that a customer is picking up a certain type of shoe—like a sandal, in this case—and the shopkeeper suggests a pair to the customer.”
