Applying a 40-Year-Old Statute to a Modern World

A statute passed more than 40 years ago, meant to address privacy in the age of telephones, faced a modern-day test in Popa v. Harriet Cartier Gifts, Inc. In allowing the plaintiffs’ class action claims under the Pennsylvania Wiretapping and Electronic Surveillance Control Act of 1978 to survive a motion to dismiss for failure to state a claim, the U.S. District Court for the Western District of Pennsylvania also considered the propriety of the putative class and gave the parties insight into how they should conduct discovery moving forward.

Pennsylvania’s wiretap statute prohibits the interception of electronic communications by “[a]ny telephone or telegraph instrument, equipment or facility, or any component thereof.” It makes no express mention of the internet or computers. That said, the district court recognized the broad definition could include these devices in considering this latest claim.

An individual alleged that certain companies illegally collected her personal data while she engaged in online shopping for pet products despite the fact that she had never made a purchase. She brought claims on her own behalf and as a class representative for violation of Pennsylvania’s wiretap statute and for invasion of privacy/intrusion upon seclusion in the Court of Common Pleas of Lawrence County, Pennsylvania.

The companies removed the case to the federal district court under the Class Action Fairness Act of 2005 (CAFA) before filing a motion to dismiss, based primarily on the argument that Pennsylvania’s wiretap statute was inapplicable in the modern age, and attacking the request to certify a class.

Is This a Federal Class Action?

The court exercised jurisdiction over the case despite the assertion of the locality exception to CAFA. This exception prohibits removal when more than two-thirds of the plaintiffs are citizens of the state where the case was originally filed and at least one defendant is from the same state, provided no other class action has been filed making similar allegations in the preceding three years. The plaintiff bears the burden of proving the class action is both local and unique to the jurisdiction. The court found the companies’ argument that there were six other cases asserting similar factual allegations against one of those defendants persuasive in finding the local controversy exception did not apply.

This is not surprising, explains Susan L. Saltzstein, New York, NY, cochair of the ABA Section of Litigation’s Class Actions & Derivative Suits Committee. “Courts have held the local controversy exception is an attempt to thwart copycat suits,” she explains. The lawsuit could have survived had the plaintiff recognized the exception and prepared a class action different enough to avoid triggering the exception, she suggests.

Can a Statute Passed in 1978 Be Used to Regulate the Modern Internet?

The companies likewise prevailed in obtaining the dismissal of the claim of intrusion upon seclusion. The district court recognized the gathering of information did not cause the requisite mental suffering, shame, or humiliation required to state a claim for invasion of privacy on this basis. The claim for a violation of Pennsylvania’s wiretap statute survived, however, leaving open the question of what application a statute developed at the beginning of the digital age can have on the gathering of electronic information today.

“While the statute was enacted at a time when the internet was in its infancy, it remains for the courts to determine whether the legislature intended to encompass technological innovations not yet widely used,” opines Marc J. Zucker, Philadelphia, PA, cochair of the Section of Litigation’s Commercial & Business Litigation Committee. “An argument can be made that technology changes so quickly that it is impossible to itemize each potential manifestation in a statute, but the question remains whether the intended scope was broad or narrow,” he continues.

The district court expressly recognized this question as key to the ultimate determination of this case. In allowing the Pennsylvania wiretap statute claims to move forward, the district court described the definitions in the statute as broad but not limitless. In so doing, the district court stated that “[t]he discovery process will give the parties an opportunity to develop a record that contextualizes the conduct at issue in light of this statutory language.”

“The court’s role is to apply traditional maxims of statutory construction, legislative intent, and basic notions of fairness and due process in assessing whether new boundaries are appropriate without legislative action,” offers Zucker. “There is no limit to what creative attorneys can argue, within the bounds of ethics and Rule 11 or its state court equivalent.”