Seyfarth Synopsis: In a significant decision for website operators, the Massachusetts Supreme Judicial Court clarified that tracking users' web activity does not constitute illegal wiretapping under the state's Wiretap Act. The court found that person-to-website interactions fall outside the Act's scope, which focuses on person-to-person communications. However, the court emphasized that other privacy laws could still apply to such tracking practices. This ruling may influence how similar cases proceed nationwide and signals to the Massachusetts legislature that any broader restrictions on web tracking require explicit statutory action.
On Thursday, October 24, 2024, the Massachusetts Supreme Judicial Court ruled that the Massachusetts state wiretap act ("Wiretap Act") does not prevent a website owner from tracking visitors' web browsing activity, even without user consent. Plaintiffs have filed numerous similar lawsuits under different state wiretapping laws around the United States. Courts in these cases have largely permitted Plaintiffs to proceed with their claims past the motion to dismiss stage. This decision from the Massachusetts high court could alter that course.
Plaintiff Kathleen Vita alleged that she had accessed and reviewed information on the defendants' – New England Baptist Hospital and Beth Israel Deaconess Medical Center, Inc. – websites, including doctors' information, medical symptoms, conditions and procedures. She alleged the defendants collected and shared her browsing history with third parties for advertising purposes without her consent. These third parties include Facebook and Google which obtained the information through tracking software – Meta pixel and Google Analytics – installed on the defendants' websites. Plaintiff did not allege that any private patient records or messages to nurses or doctors communicated through the website were intercepted or shared.
The Massachusetts Supreme Judicial Court reversed the lower court's denial of the defendant hospitals' motion to dismiss. In doing so, the Court looked to the statutory text of the Wiretap Act and legislative intent when the Act passed. The Court focused on the statutory term "communication" and determined that the legislature only intended to prevent the wiretapping of or eavesdropping on person-to-person communications when passing the Act. The conduct Plaintiff alleged did not involve person-to-person communications, but rather an interaction between a person and website, and thus fell outside the purview of the Wiretap Act.
The Court did recognize the legislature's intent for the law to apply to new and emerging technologies that may not have been contemplated when the law was originally passed in 1968. Thus, the Court noted the wiretapping law could apply to person-to-person communications across a broad technological spectrum, including cell phones, text messaging, internet chats or email, so long as the communication actually involves people communicating with each other. But if the legislature intends for the wiretapping law to prohibit the tracking of a person's browsing activity or interaction with a website, the Court urged the legislature to pass a law stating so expressly.
Although the Supreme Judicial Court in Massachusetts sided with defendants in determining that website tracking does not violate the Massachusetts state Wiretap Act, it also noted that the activity may violate other privacy laws outside the wiretapping context. Accordingly, businesses in Massachusetts and elsewhere should consider the host of privacy laws when implementing website tracking software. Additionally, it remains to be seen whether the Massachusetts legislature will heed the Court's directive and pass a law expressly prohibiting website tracking under the Wiretap Act or other statute. Lastly, while this particular case resulted in a positive outcome for businesses utilizing website tracking software, courts in different states around the United States have reached different conclusions under their respective laws.
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