Pennsylvania’s WESCA and Its Role in Data Privacy Litigation

The Pennsylvania Wiretapping and Electronic Surveillance Control Act (WESCA), codified at 18 Pa. C.S. §§ 5701–5782, is a pivotal statute governing the interception of wire, electronic, and oral communications in Pennsylvania. Enacted in 1978 and amended over time, WESCA is one of the strictest wiretapping laws in the United States, requiring all-party consent for recording or intercepting communications, a standard shared by only 11 other states. Unlike modern data privacy laws such as California’s Consumer Privacy Act (CCPA), WESCA was not designed to regulate internet-based data collection. However, recent judicial interpretations, particularly the Third Circuit’s 2022 decision in Popa v. Harriet Carter Gifts, Inc., have expanded its application to online tracking technologies, sparking a wave of class action lawsuits. This article provides a comprehensive analysis of WESCA’s all-party consent requirement, its intersection with data privacy litigation, and the implications for businesses operating in Pennsylvania, a state without a comprehensive internet privacy law.

Understanding What WESCA’s Key Provisions and All-Party Consent Means

Core Provisions of WESCA

WESCA prohibits the intentional interception, disclosure, or use of wire, electronic, or oral communications without the consent of all parties involved. The statute defines “intercept” as the “aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device” (18 Pa. C.S. § 5702). Key elements include:

• Private Right of Action: WESCA allows individuals whose communications are intercepted to sue for damages, including actual damages (or liquidated damages up to $1,000, whichever is higher), punitive damages, and reasonable attorney’s fees (18 Pa. C.S. § 5725(a)). This provision incentivizes litigation, particularly class actions, due to the potential for significant statutory damages.
• All-Party Consent: Unlike the federal Wiretap Act (18 U.S.C. § 2510 et seq.), which requires only one-party consent, WESCA mandates that all parties to a communication provide prior consent for it to be lawfully intercepted (18 Pa. C.S. § 5704(4)). This aligns Pennsylvania with states like California, Florida, and Massachusetts, which also impose stringent consent requirements.
• Exceptions: WESCA includes limited exceptions, such as for law enforcement with prior approval (18 Pa. C.S. § 5702) and public settings where there is no reasonable expectation of privacy (e.g., public conversations). However, these exceptions are narrowly construed, particularly in digital contexts.

All-Party Consent in Practice

The all-party consent requirement means that any interception of a communication whether a phone call, email, or website interaction—requires explicit or implied consent from all involved parties. In traditional contexts, such as recording a phone call, this might involve verbal acknowledgment. In the digital realm, however, applying this standard to technologies like cookies, session replay software, or pixel tracking is complex. Courts have grappled with questions like whether a website’s privacy policy constitutes implied consent and whether third-party data collection (e.g., by marketing firms) violates WESCA if users are unaware of it.

WESCA’s Evolution in the Digital Age: The Popa Case

Background of Popa v. Harriet Carter Gifts, Inc.

The Third Circuit’s decision in Popa v. Harriet Carter Gifts, Inc. (45 F.4th 687, 3d Cir. 2022) marked a turning point in WESCA’s application to online data collection. Plaintiff Ashley Popa sued Harriet Carter Gifts and its third-party marketing partner, NaviStone, alleging that their use of tracking software violated WESCA. While browsing Harriet Carter’s website, Popa’s interactions (e.g., adding items to her cart, entering her email) were simultaneously sent to NaviStone’s servers via JavaScript code, without her explicit consent. The district court initially granted summary judgment for the defendants, citing a “direct party” exception and arguing that the interception occurred outside Pennsylvania. The Third Circuit reversed, reshaping WESCA’s scope.

Key Rulings in Popa

1. Rejection of the Direct Party Exception: Defendants argued that NaviStone, as a direct recipient of Popa’s communications, could not “intercept” them under WESCA. The Third Circuit rejected this, noting that a 2012 amendment to WESCA limited the direct party exception to specific law enforcement contexts. The court held that NaviStone’s rerouting of Popa’s browser communications constituted an interception, regardless of its direct receipt (45 F.4th at 694). This contrasted with the federal Wiretap Act, which explicitly exempts direct parties (18 U.S.C. § 2511(2)(d)).
2. Location of Interception: The court ruled that the interception occurred at Popa’s browser in Pennsylvania, not at NaviStone’s servers in Virginia, because the JavaScript code (a “device” under WESCA) rerouted communications from her device (45 F.4th at 696). This established Pennsylvania’s jurisdiction over such cases.
3. Consent and Remand: The court remanded the case to determine whether Harriet Carter’s privacy policy provided implied consent. Popa claimed she never saw the policy, but the court noted that Pennsylvania law does not require actual knowledge—only that the person “knew or should have known” the communication was being recorded (45 F.4th at 698). This left open the question of what constitutes sufficient consent in digital contexts.

Impact of Popa

The Popa decision triggered a surge in WESCA-based class actions, with over ten lawsuits filed in Pennsylvania federal courts by October 2022, targeting companies using session replay software, cookies, and pixel tracking. These technologies, which record user interactions for analytics or advertising, are now scrutinized as potential “interceptions” under WESCA. The decision also highlighted WESCA’s broader protections compared to the federal Wiretap Act, as it lacks a general direct party exemption and requires all-party consent.

WESCA and Data Privacy Litigation

Why WESCA Fills the Gap in Pennsylvania

Pennsylvania lacks a comprehensive consumer data privacy law akin to the CCPA or Colorado Privacy Act. Instead, it relies on a patchwork of statutes, including WESCA, to address data privacy issues. WESCA’s private right of action and statutory damages make it an attractive tool for plaintiffs’ attorneys, especially in the absence of a dedicated internet privacy framework. The statute’s broad definition of “electronic communication” and its applicability to modern technologies have allowed plaintiffs to repurpose a law originally aimed at telephone wiretaps for internet-based privacy violations.

Types of WESCA Litigation

1. Session Replay Software: This technology records user actions (e.g., keystrokes, mouse movements) to analyze website performance. Cases like Vonbergen v. Liberty Mutual Ins. Co. (E.D. Pa. 2023) allege that session replay violates WESCA by capturing browsing activity without consent. Courts have denied motions to dismiss, pending discovery on whether the software constitutes a “device” and whether the data collected qualifies as “contents of a communication.” We have covered the Hotjar Cookie that is a common session replay technology tool that many sites use as well as Microsoft Clarity. If you are running any of these cookies please add one of our consent banners right away or use our cookie scanner to learn which cookies and pixels are on your website.
2. Third-Party Tracking: Lawsuits target companies that share user data with third parties (e.g., marketing firms) without explicit consent. In Popa, NaviStone’s receipt of Popa’s browsing data was deemed a potential interception, prompting similar claims against retailers and advertisers.
3. Pixel Tracking and Cookies: Pixel tracking, which embeds trackers in webpages to monitor user behavior, has been challenged as an unlawful interception. Plaintiffs argue that these tools allow third parties to “eavesdrop” on user interactions, violating WESCA’s consent requirement.

Litigation Trends and Defenses

• Class Action Surge: The Popa decision fueled a “flood” of wiretapping lawsuits in Pennsylvania, with plaintiffs leveraging WESCA’s statutory damages ($1,000 per violation) to pursue large-scale class actions. These cases often involve minimal actual harm, as statutory damages do not require proof of injury, raising concerns about disproportionate liability.
• Defenses: Defendants have raised several arguments, with varying success:
  • Implied Consent: Companies argue that privacy policies disclosing tracking practices constitute implied consent. However, courts have questioned whether inconspicuous policies suffice, suggesting that conspicuous notices (e.g., pop-up banners) may be required.
  • Jurisdictional Challenges: Defendants claim that interceptions occur outside Pennsylvania (e.g., at out-of-state servers). The Popa court’s focus on the user’s browser location has largely undermined this defense.
  • Device and Content Definitions: Some argue that tracking software is not a “device” under WESCA or that browsing data does not constitute the “contents of a communication.” These issues often require factual discovery, delaying dismissals.
  • Standing: Recent cases, such as Heaven v. [Defendant] (E.D. Pa. 2024), have seen courts dismiss WESCA claims for lack of Article III standing, finding that the disclosure of non-sensitive data (e.g., search queries) does not cause sufficient harm.

Comparison to Other States

WESCA’s role in data privacy litigation mirrors trends in other all-party consent states. California’s Invasion of Privacy Act (CIPA) has seen similar lawsuits targeting chatbots and session replay, though some California courts have limited CIPA’s scope to phone communications. Florida courts, under the Florida Security of Communications Act, have dismissed session replay claims, citing a direct party exception absent in WESCA. Pennsylvania’s lack of a comprehensive privacy law amplifies WESCA’s significance, as plaintiffs have fewer alternative statutes to invoke compared to states like California or Connecticut.

Ties to the Consortium of Privacy Regulators

The Consortium of Privacy Regulators, announced on April 16, 2025, by the California Privacy Protection Agency (CPPA), includes states like California, Colorado, and Connecticut, but not Pennsylvania. This bipartisan group aims to coordinate enforcement of state privacy laws, focusing on consumer protection across jurisdictions. While Pennsylvania’s absence from the Consortium limits its direct involvement, WESCA-based litigation aligns with the Consortium’s goals:

• Addressing Consumer Harm: The Consortium prioritizes harms from data misuse, such as unauthorized tracking, which WESCA lawsuits target. Cases like Popa address similar issues, protecting consumers from surreptitious data collection.
• Cross-Jurisdictional Challenges: The Consortium facilitates collaboration on violations spanning multiple states, a relevant concern in WESCA cases involving national companies or third-party vendors (e.g., NaviStone). Pennsylvania courts’ jurisdictional rulings in Popa could inform Consortium strategies for interstate enforcement.
• Consumer Empowerment: The Consortium emphasizes educating consumers about their rights, a goal supported by WESCA’s private right of action, which empowers individuals to challenge privacy violations directly.

However, Pennsylvania’s lack of a comprehensive internet privacy law complicates its alignment with Consortium states, which have robust frameworks like the CCPA. WESCA’s focus on interception, rather than broader data practices (e.g., data sales or profiling), limits its scope compared to these laws.

Implications for Businesses and Future Outlook

Challenges for Businesses

• Compliance Risks: Companies operating websites accessible in Pennsylvania must ensure that tracking technologies comply with WESCA’s all-party consent requirement. Relying on buried privacy policies may not suffice, as courts demand conspicuous disclosures. Pop-up consent banners or opt-in mechanisms are increasingly recommended.
• Litigation Exposure: The potential for class actions with statutory damages poses significant financial and reputational risks. Even minor violations, aggregated across thousands of users, can lead to substantial liability.
• Third-Party Vendor Oversight: Businesses must scrutinize third-party partners (e.g., marketing firms) to ensure compliance, as WESCA holds both the website operator and third party liable for unlawful interceptions.

Future Considerations

• Judicial Clarification: Ongoing litigation, including the Popa remand, will clarify what constitutes sufficient consent and whether tracking technologies meet WESCA’s “device” and “communication” definitions. The Pennsylvania Supreme Court could also weigh in, potentially overruling Popa if it interprets WESCA differently.
• Legislative Reform: Pennsylvania’s reliance on WESCA highlights the need for a comprehensive state privacy law. A law addressing internet-specific practices (e.g., data minimization, opt-out rights) could reduce dependence on WESCA and align Pennsylvania with Consortium states.
• Federal Privacy Legislation: The stalled American Privacy Rights Act (opposed by the CPPA in 2024) underscores the U.S.’s fragmented privacy landscape. A federal law could preempt WESCA’s application to online tracking, though its absence perpetuates state-level litigation.

Connection to Recent Events: Hertz Data Breach

The Hertz data breach, disclosed on April 14, 2025, involving the theft of driver’s license numbers and other sensitive data through a third-party vendor (Cleo Communications), illustrates the broader data privacy challenges WESCA litigation seeks to address. While not directly tied to WESCA, the breach highlights the risks of third-party data sharing, a key issue in cases like Popa. If Hertz’s compromised data included Pennsylvania residents’ communications intercepted without consent (e.g., via tracking during car rentals), WESCA could provide a legal avenue for affected consumers, reinforcing its role as a privacy safeguard in the absence of a state internet privacy law.

How To Comply With WESCA?

Pennsylvania’s WESCA, with its stringent all-party consent requirement, has emerged as a critical tool for addressing data privacy violations in a state without a comprehensive internet privacy law where we have 20 states with comprehensive frameworks, federal laws that are being used to sue businesses (read about The Electronics Communications Privacy Act), and a bunch of older archaic laws like the VPPA and CIPA being used to give citizens a right to sue makes this the best time ever to hurry up and get compliant with the help of Captain Compliance and our data privacy software tools. The Popa decision and subsequent litigation have expanded WESCA’s reach to online tracking technologies, filling a regulatory gap but creating uncertainty for businesses. As class actions proliferate, companies must adopt robust consent mechanisms and scrutinize third-party practices to mitigate liability. While WESCA aligns with the Consortium of Privacy Regulators’ consumer protection goals, Pennsylvania’s absence from the group and its reliance on a 1970s-era statute underscore the need for modern privacy legislation. Until then, WESCA will continue to shape Pennsylvania’s data privacy landscape, balancing consumer rights with the challenges of a digital economy.