Massachusetts’ Highest Court Signals Willingness to Scrutinize State Wiretapping Laws and Knock Out Claims at the Pleading Stage

For the past few years, hundreds of companies have been caught in a wave of privacy class actions relying on decades-old wiretapping laws to attack modern website technologies and business tools. Last week, Massachusetts’s highest court engaged in a thorough assessment of that state’s wiretap law and rejected plaintiff’s argument that commonly used website advertising and analytical tools intercepted “communications” in violation of the law. The basis for the suit is not novel — hundreds of similar cases have been filed in the past few years. But the Supreme Judicial Court’s willingness to engage in a deep analysis of the wiretapping law early in the case is noteworthy.

In Vita v. New England Baptist Hospital et al., the plaintiff alleged that two Massachusetts hospitals embedded in their websites common tracking technologies provided by third parties, including the trackers used for Google Analytics, which allegedly allowed these third parties to “intercept” plaintiff’s “communications” consisting of her browsing and search activities on both hospitals’ websites. The plaintiff brought suit under the Massachusetts Wiretap Act, claiming the hospitals violated the act by allowing these third parties to intercept “communications” without her consent.

Late last week, the Massachusetts Supreme Judicial Court reversed the lower court’s denial of a motion to dismiss plaintiff’s wiretapping claims on the ground that “communications” under the Massachusetts Wiretap Act could not be construed to include the “web browsing and other such interactions” at issue in the case (which have been alleged in dozens of similar cases brought under the Massachusetts law). Applying principles of statutory interpretation and looking to the legislative history of the act and relevant case law, the court concluded that the legislature intended the “communications” under the act to refer only to “person-to-person” communications, not the person-to-website interactions plaintiff alleged had been “intercepted” by tracking technologies. The court reasoned that “[b]rowsing and accessing the information published on a website is significantly different from having a conversation or sending a message to another person.”

Vita has the potential to inspire other courts to rigorously analyze their state wiretapping laws on motions to dismiss as a means of stemming the tide of meritless cases. Vita applies only to Massachusetts’s wiretapping law, which differs in some respects from other state wiretapping laws, including the California Invasion of Privacy Act, under which many wiretapping cases are being filed. As such, the decision may not signal the end or even the beginning of the end of all such suits. Rather, Vita can be a seen as a wake-up call that these claims can and should be pressure tested at the pleading stage and, where appropriate, dismissed with prejudice. In the meantime, companies should continue to follow best practices to mitigate wiretap case risks arising from the use of third-party tracking technologies on public-facing websites.