• by Wendy Davis , Yesterday

Pennsylvania resident Ashley Popa is making another bid to revive her privacy lawsuit against Microsoft, which allegedly used "session replay" technology to record her activity on the ecommerce site PetSuppliesPlus.com.

A panel of the 9th Circuit Court of Appeals ruled last month that Popa lacked "standing" to proceed with her lawsuit against Microsoft because she failed to show that she was injured by the alleged privacy violation. The judges specifically said in the ruling that the shopping data allegedly recorded by Microsoft was not "embarrassing."

On Tuesday, Popa asked the 9th Circuit to reconsider that ruling, arguing it's inconsistent with other decisions that have allowed consumers to sue companies over online tracking.

"The right to conduct one's affairs away from prying eyes (whether those affairs are sensitive or not) has long been protected in America, and this Court and other courts have repeatedly affirmed legislatures' ability to prohibit technology-assisted eavesdropping, regardless of the topic of the conversation," she argues.

The new argument comes in a dispute dating to 2022, when Popa alleged in a class-action complaint that Microsoft violated Pennsylvania's wiretap law and engaged in "intrusion upon seclusion" by providing code that recorded her "mouse movements, clicks, keystrokes" and other interactions on PetSuppliesPlus.com.

U.S. District Court Judge James Robart in Seattle dismissed Popa's complaint in October 2023, ruling that she failed to show the kind of injury that would warrant a federal lawsuit.

Popa then appealed to the 9th Circuit, arguing that the "surreptitious collection and disclosure of a plaintiff’s private electronic communications" is harmful in itself, and is actionable in federal court.

Microsoft countered that the allegations, even if proven true, wouldn't show that it "intercepted a private conversation, email, text message, or any other personal sensitive information."

"The sort of session replay technology Popa attacks here is a common type of analytics software that helps website owners... analyze website use to improve the site and user experience," Microsoft wrote.

The Interactive Advertising Bureau, Chamber of Commerce and other business groups backed Microsoft in a friend-of-the-court brief.

"At bottom, Popa seeks to hold defendants-appellees liable because they use session replay technology, which enhances consumers’ web-browsing experiences, even though she has experienced no cognizable harm from that practice and it has not been outlawed by the Pennsylvania legislature," those groups wrote.

A three-judge panel of the 9th Circuit rejected Popa's request to revive her claims.

"Popa identifies no embarrassing, invasive, or otherwise private information collected by Clarity," U.S. District Court Judge Jed Rakoff wrote, referring to Microsoft's analytics service.

He added that Microsoft's alleged monitoring of Popa's interactions with PetSuppliesPlus.com "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."

Circuit Judges Johnnie Rawlinson and Milan Smith, Jr. joined Rakoff's opinion.

Popa argues in her new petition that the appellate panel wrongly focused on the sensitivity of the data, instead of the alleged eavesdropping activity.

"Put simply, the common law has long protected the right to privacy in personal communications, including the letters we write, the phone calls we make, the books we read, the videos we watch, and communications we send on the Internet-as this Court has repeatedly recognized," she argues. "The panel here, however, erroneously narrowed this common-law right, holding that snooping or eavesdropping is not harmful unless the subject of the conversation is 'sensitive' or 'offensive.'"

She is seeking a new hearing in front of a larger panel of 9th Circuit judges.