In a closely watched decision, the highest court in Massachusetts has rejected the theory that third-party website tracking technology violates G. L. c.
272, § 99 , the Massachusetts Wiretap Act. In Vita v. New England Baptist Hospital et al , SJC-13542, plaintiff Kathleen Vita alleged that the websites of two hospital defendants illegally collected information about her browsing activities with tracking software, and simultaneously transmitted that information to third-party software developers that commercialized her data.
No private medical records or messages with health care providers were alleged to have been intercepted or transmitted. The SJC rejected the plaintiff’s theory that the Wiretap Act prohibited website tracking and reversed the trial court’s denial of the hospitals’ motions to dismiss. “Communications” Do Not Include Website Tracking under the Wiretap Act The SJC based its ruling on a close review of the text and legislative history of the Wiretap Act.
Enacted in 1968, the Act was intended to prohibit aiding the secret recording of the "contents" of "any wire or oral communication." G. L.
c. 272, § 99 A, C. The Legislature’s concern was the interception of person-to-person conversations and messages using hidden electronic surveillance devices.
While the Legislature crafted the statute to flexibly prohibit secret electronic eavesdropping by new and evolving technologies, it did not define “communications.” Relying on context and dictionary.
