Popa v. Harriet Carter Gifts, Inc.

52 F.4th 121

Ashley POPA, individually and on behalf of all others similarly situated, Appellant

v.HARRIET CARTER GIFTS, INC., a Pennsylvania corporation; NaviStone, Inc., a Delaware corporation

No. 21-2203

United States Court of Appeals, Third Circuit.

Argued on June 8, 2022

Opinion Filed October 18, 2022

Jamisen A. Etzel, Kelly K. Iverson, Gary F. Lynch (Argued), Elizabeth Pollock-Avery, Lynch Carpenter, 1133 Penn Avenue, 5th Floor, Pittsburgh, PA 15222, Counsel for Appellants

Sarah A. Ballard, Paul G. Karlsgodt (Argued), Baker & Hostetler, 1801 California Street, Suite 4400, Denver, CO 80202, Carrie H. Dettmer Slye, Baker & Hostetler, 312 Walnut Street, Suite 3200, Cincinnati, OH 45202, Counsel for Appellee Harriet Carter Gifts, Inc.

David W. Bertoni (Argued), Eamonn R. C. Hart, David Swetnam-Burland, Brann & Isaacson, 184 Main Street, 4th Floor, P. O. Box 3070, Lewiston, ME 04240, Devin J. Chwastyk, McNees, Wallace & Nurick, 100 Pine Street, P. O. Box 1166, Harrisburg, PA 17101, Counsel for Appellee NaviStone, Inc.

Before: CHAGARES, Chief Judge, AMBRO, and FUENTES, Circuit Judges

OPINION OF THE COURT

AMBRO, Circuit Judge 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 ruling 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 Popa's browser. The browser interpreted this code to allow the website to appear on her screen. Harriet Carter's HTML code also included some JavaScript that told Popa'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 her browser loaded the OneTag code, two things happened. First, the code placed cookies on Popa's browser so that her activity on the webpage had an associated visitor ID. Second, the code told Popa's browser to begin sending information to NaviStone as Popa navigated through the Harriet Carter website, such as communicating that she 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, the Court then ruled for the Defendants. Popa now appeals.¹

II. Standard of Review

We give a fresh (that is, de novo ) review to the District Court's grant of summary judgment, viewing the facts and making all reasonable inferences in the non-movant's favor. TitleMax of Del., Inc. v. Weissmann , 24 F.4th 230, 236 n.3 (3d Cir. 2022). Summary judgment is appropriate if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

When asked to interpret provisions of Pennsylvania law, "the decisions of the Pennsylvania Supreme Court are the authoritative source." Spence v. ESAB Grp., Inc. , 623 F.3d 212, 216 (3d Cir. 2010). If there is no controlling decision, our task is to predict how that Court would rule on an issue. Id. That prediction may be informed by "decisions of state intermediate appellate courts, of federal courts interpreting that state's law, [ ] of other state supreme courts that have addressed the issue," and other sources "tending convincingly to show how the highest court in the state would decide the issue at hand." Id. at 216–17 (internal quotation marks omitted).

III. Discussion

The WESCA offers a private civil cause of action to "[a]ny person whose wire, electronic or oral communication is intercepted, disclosed or used in violation of [that statute]" against "any person who intercepts, discloses or uses or procures any other person to intercept, disclose or use, such communication." 18 Pa. C.S. § 5725(a). In other words, it prohibits intercepting communications while allowing someone whose communications have been intercepted to sue the offender. It also operates in conjunction with and as a supplement to the Federal Wiretap Act, 18 U.S.C. § 2510 et seq. , which provides uniform minimum protections for wire, electronic, or oral communications. The States—like Pennsylvania—may "grant greater, but not lesser, protection than that available under federal law," as the WESCA does. Commonwealth v. Spangler , 570 Pa. 226, 809 A.2d 234, 237 (2002).

Popa, here proceeding only under Pennsylvania's Act, contends that NaviStone violated that statute by intercepting her communications with Harriet Carter Gifts' website. Harriet Carter, in turn, also violated the Act, she asserts, by "procur[ing] any other person [i.e. , NaviStone] to intercept" her communications. 18 Pa. C.S. § 5725. The Defendants, though, argue that under Pennsylvania law no interception can occur when the communications are received by a direct party, which they say NaviStone was. Plus they make two alternative arguments: first, even if they did intercept Popa's communications, the WESCA does not reach their conduct because any interception occurred outside the Commonwealth; and second, they had Popa's implied consent to intercept. We address each argument in turn.

A.

NaviStone and Harriet Carter are liable to Popa only if NaviStone "intercepted" Popa's communications. 18 Pa. C.S. § 5725(a). An "intercept" is a term of art in the wiretap context. Though in normal conversation it means to "stop, seize, or interrupt in progress"—such as when a safety jumps between the quarterback and wide receiver to break up a pass—the WESCA gives the word a "broader connotation than the ordinary meaning." In re Google Inc. Cookie Placement Consumer Priv. Litig. , 806 F.3d 125, 144 n.80 (3d Cir. 2015) (interpreting the identical portion of the Federal Wiretap Act's definition of "intercept") (internal quotation marks omitted). Under Pennsylvania's Act, it is just the "[a]ural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device."² 18 Pa. C.S. § 5702.

The WESCA's use of "intercept" thus reduces to acquiring certain communications using a device. And based on just that definition, anyone could "intercept" communications, including people who "acquire" a text message or chat sent to them. The Defendants, though, argue that Pennsylvania courts have added a gloss to the Act's statutory definition, making it so that no interception occurs when a direct recipient is the one acquiring the communications. Because, they claim, NaviStone was a direct party to Popa's communications, they are free from all liability.

For years, Pennsylvania courts routinely determined in criminal suppression cases that no interception had occurred under the WESCA when the alleged "interceptor" was the direct recipient of a communication. Two Pennsylvania cases illustrate this.

In the first, Commonwealth v. Proetto , a defendant was convicted of criminal solicitation (among other things) based on his internet chatroom messages with a 15-year-old girl. 771 A.2d 823, 826–27 (Pa. Super. Ct. 2001). E.E., the victim, saved her online conversations with the defendant and handed them over to the police. Id. at 826. Later, when a detective entered the chatroom impersonating another 15-year-old girl, he logged messages the defendant sent "her" asking for a nude video in exchange for nude photos of himself. Id. at 827. The defendant later...