On October 24, 2024, in a long-awaited decision in Vita v. New England Baptist Hospital, Massachusetts’ highest court snuffed out an attempt to use the state’s 1968 Wiretap Act to impose liability on a hospital system for its use of third-party analytics technologies on its website. The case had been closely watched by the business community, including amicus briefing by the U.S. Chamber of Commerce expressing concerns that an opposite holding could have imposed “crippling and virtually unlimited liability” under the state’s Wiretap Act for “injury-less claims.”
In the 5-1 opinion, the state’s Supreme Judicial Court ruled in favor of the hospital system, holding that the Massachusetts Wiretap Act (M.G.L. c. 272, § 99) did not bar website operators from tracking users’ browsing activities. The statute criminalizes the interception of any wire or oral communication, imposing penalties of up to five years’ imprisonment or up to $10,000 per violation. With the availability of sizable statutory damages, the statute, and others like it, have been the foundation for a surge in consumer privacy class actions alleging wiretap violations based on the tracking of users’ browsing activities on websites using third-party tracking technologies, such as Google Analytics or the Meta Pixel.
In applying the rule of lenity and reversing the denial of the defendants’ motion to dismiss the putative class action, the court found the term “communication” ambiguous as applied to the web browsing activities alleged by the plaintiff, and thus, defendants should get the benefit of the doubt as to the construction of the statute. The opinion noted that the plaintiffs’ allegations did not claim “the interception of person-to-person conversations or messaging of the kind clearly within the wiretap act’s ambit.” Because the interactions here were not with a person but rather with a website, the court held, “nothing in the text of the statute makes unambiguously clear that the Legislature intended to reach so far as to criminalize the secret recording of such web browsing activities.” Accordingly, the lower court should have dismissed the wiretap claim, and the entire case, from the outset.
The lone dissenting justice opined that the statute unambiguously protected “any communication,” including electronic communications and “information shared over an electronic media.” “The court decides that the wiretap act provides no recourse despite its prohibition on surreptitious electronic surveillance by private parties,” she wrote. “Lamentably, the court is right about one thing; the Legislature will need to correct today’s error.”
This is but one of dozens of pending cases addressing a prolific and developing area of litigation relating to the deployment of modern tracking and web analytics technologies by companies from across an array of industries. Given the ever-evolving state of the law governing these ubiquitous technologies, companies of all kinds should keep a close eye on these legal trends, the implications of which could significantly impact how they choose to use such analytics tools going forward.
