The decision supports session replay and similar analytics technologies when deployed transparently.
The United States Court of Appeals for the Third Circuit issued a decision on August 7, 2025, in Cook v. GameStop, Inc. that provides important guidance on Article III standing for session replay technology challenges, affirming dismissal of a putative class action. The ruling offers clarity for companies deploying website analytics tools while establishing clearer pleading requirements for privacy plaintiffs.
Case Background and Technology
Plaintiff Amber Cook challenged GameStop's use of session replay code, which captures and reconstructs comprehensive user interactions including mouse movements, clicks, keystrokes, scrolling, window resizing and page navigation. During her website visit, Cook browsed products, entered search terms and added an item to her cart without inputting “any sensitive or personal information” such as her name, contact details or payment data. The session replay technology assigned her a unique user ID for tracking purposes, though GameStop never connected this identifier to her actual identity.
Cook brought claims under the Pennsylvania Wiretapping and Electronic Surveillance Control Act (WESCA) and for intrusion upon seclusion, arguing that the mere interception of her website communications constituted sufficient “concrete injury” for federal jurisdiction.
The Court's Standing Analysis
The Third Circuit applied the U.S. Supreme Court's framework from Spokeo and TransUnion requiring concrete harm analogous to injuries traditionally recognized at common law. The court emphasized that statutory violations alone cannot create Article III standing—plaintiffs must demonstrate real-world harm comparable to established legal injuries.
Cook attempted to establish standing through two privacy tort analogies, both of which the court found insufficient on these particular facts:
Disclosure of Private Information
The court held that Cook's browsing activity was neither personal nor sensitive, noting she shared no identifying information and that the data was never made public beyond the session replay code provider as GameStop's vendor. Without potential for humiliation or reputational harm, no concrete injury existed under these circumstances.
Intrusion Upon Seclusion
The court found Cook could not plausibly allege interference with her solitude or private affairs, emphasizing that "most of us understand that what we do on the [i]nternet is not completely private." The absence of sensitive or identifying information distinguished her claim from recognized intrusion scenarios.
Statutory "Elevation" Theory Rejected
Cook argued that WESCA "codifies a presumption of privacy" that automatically transforms any electronic communication interception into actionable harm. The court rejected this interpretation, clarifying that while legislatures may "elevate harms that exist in the real world" to make them legally actionable, they "may not simply enact an injury into existence" where no real-world harm occurs. This reinforces that federal courts require actual concrete injury beyond statutory violations.
Distinguishing Prior Precedent
The decision carefully distinguished two earlier Third Circuit rulings favorable to privacy plaintiffs where companies collected personal browsing data despite explicit promises not to do so. Unlike those cases involving deceptive practices, GameStop made no contradictory promises and disclosed its data collection practices, albeit in an allegedly inconspicuous website location. This distinction suggests that transparency in privacy practices, even if imperfect, may provide meaningful legal protection.
Practical Implications
The decision supports session replay and similar analytics technologies when deployed transparently. Key protective factors include clear privacy disclosures, avoiding collection of personally identifiable information during anonymous browsing sessions, and limiting data sharing to legitimate business vendors rather than public disclosure. Companies should note that the ruling validates their use of comprehensive behavioral tracking tools provided they maintain transparency about data collection practices.
The ruling also underscores the importance of thorough standing analysis in privacy class actions, particularly when defending clients who collect anonymous behavioral data for legitimate business purposes. Anonymous browsing data collection may not support federal jurisdiction without additional harm elements, though the specific facts and context will matter significantly. The decision also highlights the continued importance of transparent data collection practices supported by appropriate privacy disclosures.
Important Caveat
The court importantly noted that Cook's lack of standing "does not mean that no plaintiff can proceed in federal court to seek redress of web-browsing tracking under WESCA." The decision is necessarily fact-specific and does not categorically immunize session replay technology from federal privacy claims—rather, it requires more particularized harm allegations depending on the specific circumstances of data collection and use. The court's modification of the dismissal from "with prejudice" to "without prejudice" preserves potential refiling with different allegations, reinforcing that the ruling turns on the particular facts alleged rather than establishing blanket protection for all session replay implementations.
For More Information
If you have any questions about this Alert, please contact J. Colin Knisely, Michael S. Zullo, any of the attorneys in our Website Accessibility and Privacy Compliance Litigation Group, any of the attorneys in our Technology, Media and Telecom Industry Group or the attorney in the firm with whom you are regularly in contact.
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