Intellectual Property, Information Technology & Cybersecurity

The Third Circuit recently added to the growing body of wiretapping law addressing the use of session replay technology in In re BPS Direct, LLC; Cabela’s LLC Wiretapping Litig., 2026 WL 1280969 (May 11, 2026). Expanding on its prior decisions, the court held that in certain circumstances, data collected through session replay technology could give rise to a concrete injury sufficient for standing to pursue claims under wiretapping laws including the Electronic Communications Privacy Act (ECPA).

The Third Circuit’s decision is a departure from its prior decision in Cook v. GameStop, Inc.[1] and from Ninth Circuit authority that as to session replay software, consumers have no reasonable expectation of privacy.[2] In light of the Third Circuit’s decision, going forward, online retailers should tread carefully when using session replay to collect analytics on their websites because there may be different risk profiles in different jurisdictions.

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