Readers of this blog are aware of the surge in consumer privacy lawsuits alleging that the use of third-party tracking technology to collect consumer data while visiting a website constitutes illegal wiretapping. While most of these lawsuits are filed in California, companies have found themselves defending against these claims in other jurisdictions as well. A recent appellate decision from the State of Massachusetts’ highest court analyzed wiretapping clams and whether the lower court incorrectly denied motions to dismiss filed by two defendant hospitals. We analyze this favorable Massachusetts wiretap decision in further detail below.
Website Interactions Are Not Communications Under Massachusetts Wiretap Act
In Vita v. New England Baptist Hospital and Vita v. Beth Israel Deaconess Medical Center, Plaintiff Kathleen Vita (“Plaintiff”) filed class action complaints against New England Baptist Hospital (“NEBH”) and Beth Israel Deaconess Medical Center, Inc. (“BIDMC”) (collectively, “Defendants”). In both complaints, Plaintiff alleged that: (1) Defendants collected and transmitted her interactions on Defendants’ websites; (2) these interactions constituted “wire communications” protected by Massachusetts’ Wiretap Act; (3) Defendants allegedly shared Plaintiff’s communications with third parties without her consent; and (4) the interception of Plaintiff’s communications violated the Wiretap Act. NEBH and BIDMC filed separate motions to dismiss, and the lower court judge denied both motions. Defendants appealed and the cases were consolidated for appellate review.
On appeal, the Court reversed the lower court’s denial of Defendants’ motions to dismiss. First, the Court looked to the plain text of the Massachusetts Wiretap Act and its legislative history. Reviewing the legislative history, the Court noted that, in crafting the statute, the Legislature had focused primarily on the secret interception of person-to-person conversations and messaging. Conversely, Plaintiff’s allegations concerned her interactions with Defendants’ website, not personal conversations or messages with another person. Although the Court acknowledged that the Legislature drafted the Wiretap Act to apply to new and evolving technology, the Court determined that it “cannot conclude with any confidence that the Legislature intended ‘communication’ to extend so broadly as to criminalize the interception of web browsing and other such interactions.”
What is The Significance of This Decision?
While Defendants ultimately prevailed, it should be noted that this decision was not unanimous among the panel of judges. Although several jurisdictions faced with claims similar to those alleged in Vita have recently ruled in favor of defendants, these website tracking claims continue to present challenges for online businesses across the country. Illegal wiretapping claims are unlikely to slow down anytime soon, especially in jurisdictions such as Massachusetts, which require all parties to a communication to consent to its recording.
If your website uses software to track consumer interactions and is named as a defendant in a wiretapping lawsuit, it is imperative that you evaluate whether you have viable defenses. Failing to do so may result in protracted and costly litigation that could easily be avoided. In addition, your company should consider reviewing: (1) its data collection technology; (2) when and how consent to collect and use such consumer data; and (3) with whom your company shares this information.
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