Judges Toss Privacy Case, Claim Tech Like a Clerk 'Observing Shoppers'
Despite technology recording a woman's activity on a shopping site, that wasn't enough for her to claim a concrete privacy injury, an appeals court ruled as it dismissed her class-action suit. Celebrating the decision, advocacy groups said merely invoking the word "privacy" doesn't necessarily equate to a legitimate claim.
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The 9th U.S. Circuit Court of Appeals' decision Tuesday in Popa v. Microsoft Corporation affirmed an October 2023 ruling from the U.S. District Court for Western Washington that also dismissed the privacy complaint.
In the class-action suit, lead plaintiff Ashley Popa alleged that session-replay technology Microsoft Clarity on the Pet Supplies Plus site (PSP) captured and reproduced her interactions. This was a violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act, among other laws, Popa alleged.
Instead of amending her earlier complaint, Popa asked the district court to dismiss the case so she could file an appeal, which District Judge James Robart did, in December 2023. Following that, case 24-14 was argued before 9th Circuit Judges Johnnie Rawlinson and Milan Smith as well as District Judge Jed Rakoff, sitting by designation, in January 2025.
“Popa focuses her allegations on specific pieces of information allegedly collected by Clarity,” including items she looked at on the site and part of her mailing address, said Rakoff, who authored the opinion of the panel. “The [district] court observed that the information allegedly collected by defendants ‘reveals nothing more than the products that interested ... Popa and thus is not the type of private information that the law has historically protected.’”
“Popa does not explain how the tracking of her interactions with the PSP website caused her to experience any kind of harm that is remotely similar to the ‘highly offensive’ interferences or disclosures that were actionable at common law,” he added.
She “identifies no embarrassing, invasive, or otherwise private information collected by Clarity. Indeed, the monitoring of Popa’s interactions with PSP’s website seems most similar to a store clerk’s observing shoppers in order to identify aisles that are particularly popular or to spot problems that disrupt potential sales.”
Though “Popa contends that because the Pennsylvania legislature enacted a statute protecting a substantive privacy right, any plaintiff alleging a violation of that statute will satisfy” the necessary standing, the panel judges found that's not always so.
Instead, “the Court determined that some plaintiffs had standing to bring a claim under the statute while others did not -- an implicit rejection of a one-size-fits-all approach.”
Gerad Stegmaier, tech and data lawyer at Reed Smith, a firm involved with the case, celebrated the ruling in a LinkedIn post Tuesday.
“We've consistently advanced the basic position that the mere allegation of a privacy interest doesn't automatically equate to a privacy injury and that many alleged privacy injuries are not, in fact, injuries historically recognized by any American court,” he said. “Today our team is pleased that our arguments resulted in a unanimous decision supporting positions advanced over and over on behalf of our clients.”
“The Ninth Circuit joins a number of federal circuits, including the Eighth Circuit, in dismissing yet another class action seeking standing by simply invoking the word ‘privacy,’” he added.
The Washington Legal Foundation (WLF), which submitted a joint amicus brief, also praised the 9th Circuit's ruling. “The word ‘privacy’ is not a magical talisman in whose presence Article III’s inflexible standing requirements suddenly melt away,” said Cory Andrews, general counsel and vice president of litigation at WLF in a release Tuesday.
The U.S. Chamber of Commerce, NetChoice LLC and the Interactive Advertising Bureau joined WLF in the brief.