Login | May 16, 2025
No you’re not being wire tapped
RICHARD WEINER
Technology for Lawyers
Published: May 17, 2024
Three recent Pennsylvania federal court decisions have slowed down a wave of “wiretap” litigation that has been brought by various website users against major companies for how their websites collect user data.
Basically most, if not all, websites record user data when the user visits the site. This includes voluntary data like personal information (name, address, credit card info, etc.) and involuntary data (what the user is clicking on, how well the links work, percentages of clicks that wind up in sales, etc.).
While the voluntary information is given freely, the involuntary info is a condition of use of the site.
That information is generally anonymized and is used to build statistics about the site designed to help make the user experience better for both the company and future users.
The anonymized data has no personal information (if it’s being done correctly).
The software that runs these anonymous is called session replay software; it provides companies with video-like reconstructions of a users’ interactions with the site.
So, some states have laws that no telephone conversation can be recorded without the permission of all parties to the conversation (particularly Pennsylvania, California and Maryland). These are called “wiretap” statutes.
What do those things have to do with one another, you ask?
Well, I’ll tell ya.
Several federal plaintiffs got the bright idea to sue companies for grabbing anonymous data under their states’ wiretap laws.
In early April, Spirit Airlines defeated such a lawsuit in Smidga v. Spirit Airlines, No. 2:22-CV-1578-MJH, 2024 WL 1485853 (W.D. Pa. Apr. 5, 2024).
The court held that plaintiffs had no standing to bring the case, stating that the plaintiffs “alleged no concrete harm from Spirit’s use of Session Replay software.”
The court left open a potential action by plaintiffs that might have standing, like if Spirit had let credit card info out. But then that’s not wiretap stuff, just basic privacy stuff.
The other two cases involved Bass Pro Shops and Cabela’s, similarly dismissed on lack of standing. See In re BPS Direct, LLC, No. 22-CV-4709, 2023 WL 8458245 (E.D. Pa. Dec. 5, 2023).
So if you have a potential client who thinks they’re being wiretapped when they click on a website––run!
Thanks for the analysis to Caren Decter at Frankfurt Kurnit Klein & Selz PC.