Massachusetts’s top court has ruled that a 1960s wiretapping law prohibiting eavesdropping on electronic communications such as phone calls does not bar website operators from collecting users’ browsing activities, without their consent, using popular analytics tools produced by the likes of Google and Meta.
“Based on our review of the text of the wiretap act and its legislative history, we 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,” the majority opinion, authored by Justice Scott Kafker, reads.
The case was brought by Kathleen Vita, a Massachusetts resident who claimed that two hospitals—New England Baptist Hospital and Beth Israel Deaconess Medical Center—violated state privacy laws by using tracking software to collect sensitive information shared on their websites.Vita argued that when she browsed the hospitals’ websites for information about doctors and medical conditions, her interactions were tracked and shared with third parties without her consent and used to deliver targeted advertising. She claimed that the hospitals’ tracking practices amounted to secret surveillance of her personal health care inquiries, which should be protected under the wiretap statute.
Siding with the defendants, the top court’s majority ruled on Oct. 24 that the law, enacted in 1968, was designed primarily to prevent secret recordings of in-person and telephone conversations, not modern digital exchanges such as those alleged by Vita.
“Vita’s allegations do not claim the interception of person-to-person conversations or messaging of the kind clearly within the wiretap act’s ambit,” Kafker wrote. “The interactions here are not with another person but with a website. Nor are they personal conversations or messages being intercepted, but rather the tracking of a website user’s browsing of, and interaction with, information published on a website.”
The court found that the term “communication” in the wiretap law is ambiguous when applied to web browsing, which lacks interpersonal exchange, prompting the judges to apply the “rule of lenity,” which requires unclear laws to be interpreted in favor of defendants. The majority also suggested that lawmakers could revisit the wiretap law to address how it applies to modern digital communications, such as web browsing.
The majority ruling drew a strong dissent from Justice Dalila Wendlandt, who argued that the hospitals had assured patients of confidential exchanges but then implanted tracking code to assist third parties in recording patients’ private medical concerns.
“Unbeknownst to patients, they implanted tracking code to assist third parties to record the patients’ private medical concerns, padding Facebook’s and Google’s bottom lines,” Wendlandt wrote in the dissenting opinion.
“The court decides that the wiretap act provides no recourse despite its prohibition on surreptitious electronic surveillance by private parties. Lamentably, the court is right about one thing; the Legislature will need to correct today’s error.”
The majority highlighted the wiretap law’s original intent and its limitations in addressing the use of new technologies such as tracking software for targeted advertising. The dissent focused on legal protections against secret surveillance and argued that the law should be interpreted more broadly in an era when personal information is increasingly shared online.
The Epoch Times has reached out to the attorneys representing the parties involved in the litigation with requests for comment.
