Massachusetts Supreme Judicial Court Holds That Third-Party Technologies Relating to Web Browsing Do Not Violate Massachusetts Wiretap Act

Massachusetts's highest court has ruled that website operators' use of third-party technology, including Google Analytics and Meta Pixel, to collect data on individuals' browsing of and interactions with websites does not violate the state's anti-wiretapping law. Vita v. New England Baptist Hospital, No. SJC-13542, 2024 WL 4558621, at *16 (Mass. Oct. 24, 2024). The court explained that those activities do not clearly amount to the person-to-person communications the 1960s-era statute is intended to cover.

Plaintiff Kathleen Vita asserted in her complaint that two hospitals collected and transmitted her browsing activities on the hospitals' websites to third-party analytics providers Meta and Google. The Massachusetts Wiretap Act makes it a crime to "willfully commit[] an interception, attempt[] to commit an interception, or procure[] any other person to commit an interception or to attempt to commit an interception of any wire or oral communication." G. L. c. 272, § 99 C 1. It also provides a civil cause of action to "[a]ny aggrieved person whose oral or wire communications were intercepted, disclosed or used except as permitted or authorized by [the statute] or whose personal or property interests or privacy were violated by means of an interception." Id. § 99 Q. Plaintiff claimed that her interactions constituted "wire communications" and that the hospitals' alleged sharing of browsing information with third parties for advertising purposes without her consent constituted "interception" of her communications, in violation of the statute.

The Massachusetts Supreme Judicial Court disagreed, finding that the meaning of "communications" is ambiguous and does not clearly apply to the alleged website interactions.

First, the court considered the statutory text. Though the statute does not define the term "communication," the court pointed to statutory language that "makes plain" that "[p]rivate conversations in person or over the telephone or private person-to-person messages communicated through the use of wire or cables," which can include "by means of e-mail, text message, chat, instant message, or the equivalent," are "the core type of communication the wiretap law was designed to address." Vita, 2024 WL 4558621, at *8. By contrast, plaintiff did "not allege communications between people in this commonsense way" but rather "communications consist[ing] of what would commonly be called web browsing." Id. The court concluded that the statute does not clearly cover "all interactions between a user and a website" and that the statutory term "communication" is ambiguous in the web browsing context. Id.

Second, the court emphasized that the legislative history did not alter its conclusion, as "[t]here is nothing in that legislative history suggesting that the Legislature intended to extend the act, and its criminal penalties, beyond the interception of person-to-person conversations or messaging." Id. at *10.

Third, the court observed that its case law has never extended the meaning of "communication" beyond person-to-person interactions.

The court therefore decided that the alleged interactions, including entering a URL, entering search terms, accessing a webpage, clicking links, and scrolling on a webpage, "are clearly not the type of person-to-person conversation or messaging unambiguously protected by the act." Id. at *3, 15. The court noted that plaintiff did not allege that her communications with a physician or other medical professional had been intercepted. Thus, the websites' alleged transmission of data about a user's web browser and IP address "bear little resemblance to person-to-person conversation." Id. at *15.

Because the statute is ambiguous, the court held that the rule of lenity requires resolving the ambiguity in defendants' favor. The court explained, "If the Legislature intends for the wiretap act's criminal and civil penalties to prohibit the tracking of a person's browsing of, and interaction with, published information on websites, it must say so expressly." Id. at *2.

In a lengthy solo dissent, Justice Dalila Wendlandt disagreed with the majority and called on the legislature to "correct today's error." Vita, 2024 WL 4558621, at *16, 31 (Wendlandt, J., dissenting).

Hundreds of similar lawsuits are currently pending in state and federal courts across the country. This significant decision may stem the filing of these suits under Massachusetts law and also may inform decisions under other state wiretapping laws that similarly are both criminal and civil in nature.

Covington represented the U.S. Chamber of Commerce as amicus curiae in Vita.