A Pennsylvania woman claims Harriet Carter Gifts, a former Montgomeryville retailer that closed in March, used software to secretly record information that consumers typed on its website, according to a proposed class-action lawsuit.
Software installed by the retailer collected the names, emails, or addresses that customers typed on the company’s website even if they did not click “submit” to send the information, according to the lawsuit transferred to federal court last week. The software came from NaviStone, an Ohio-based marketing company that advertises help “identifying website visitors who have shown intent to buy,” the complaint says.
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The suit, filed by Ashley Popa of Lawrence County, alleges that Harriet Carter and NaviStone violated Pennsylvania wiretap and privacy laws. It asks a judge to certify a class of state residents who accessed Harriet Carter’s website and had their information intercepted by NaviStone. The suit seeks unspecified damages and lawyers’ fees, though it notes the wiretap act imposes damages of at least $1,000 per violation.
“NaviStone intercepted Harriet Carter website visitors’ keystrokes, mouse clicks and other electronic communications in real time for the purpose of gathering visitors’ personally identifiable information,” the suit claims.
A spokesperson for NaviStone called the lawsuit “frivolous” and “completely without merit," and vowed to file a motion to dismiss the complaint. The company said it it does not capture, learn, or share the names and addresses of website visitors, but blindly matches the information to an existing mailing list.
“Many of the allegations in the complaint contain numerous false and reckless statements, and the legal theory on which the complaint is based makes no sense and is contrary to the law,” the spokesperson said in a statement.
Amerimark Interactive, an Illinois-based e-commerce company that bought the Harriet Carter brand after the retailer closed on March 29, did not return a request for comment.
Popa’s lawyer, Gary Lynch of Pittsburgh, did not return requests for comment.
The software installed by Harriet Carter intercepted data as soon as customers loaded HarrietCarter.com in their web browser, according to the lawsuit, which was filed in March in Lawrence County but is now in U.S. District Court in Western Pennsylvania. As users browsed the retailer’s website, NaviStone attempted to match visitors with records of consumers, the suit said.
Lawyers for Harriet Carter and NaviStone said at least 5,001 people visited the retailer’s website during the time Popa claims NaviStone intercepted consumer communications, so there are at least $5,000,000 in alleged statutory damages. The NaviStone spokesperson said its software was installed on Harriet Carter’s website for a “very short period of time” in fall 2016.
In June 2017, technology news website Gizmodo reported that at least 100 websites used NaviStone’s computer code. Most of the dozens of sites reviewed by Gizmodo captured only visitors’ email addresses, but some also collected home addresses and other information. Only one site explicitly disclosed to consumers that their information was collected even if an order was canceled or not completed, the report said.
Last year, federal judges in New Jersey and New York tossed out two similar cases against NaviStone, finding that the consumers failed to state claims that entitled them to relief. In his July 2018 opinion, U.S. District Judge William Pauley III of the Southern District of New York said the alleged conduct raised “troubling privacy concerns,” but found the conduct "does not violate any of the statutes” cited by the plaintiff.
In 2017, the Federal Trade Commission investigated whether NaviStone violated federal law by engaging in “deceptive acts or practices," but closed the investigation without requesting changes to the firm’s practices, according to a January letter from a NaviStone lawyer.