Massachusetts High Court Refuses to Apply Wiretapping Act to Internet Browsing
Vita v. New England Baptist Hospital
and
Vita v. Beth Israel Deaconess Medical Center et al.
(Massachusetts Supreme Judicial Court)
In this case the Massachusetts Supreme Judicial Court issued a landmark decision in which it declined to extend the state’s wiretapping act to cover tracking a computer user’s interactions with websites. The court’s ruling vindicated the view taken in NELF’s amicus brief that the act is not intended to reach beyond the interception of conversations. The court’s ruling thereby sealed the fate not only of these two cases but also that of about two dozen other pending cases, as well as forestalling those that would otherwise have been filed against literally thousands of Massachusetts businesses and non-profits. The violations alleged would have created huge financial liabilities for enterprises throughout the Commonwealth.
At issue was the question of whether a website’s use of browser tracking software constitutes a violation of the state’s anti-wiretapping act. It was alleged that the two hospitals tracked users’ website activities with embedded JavaScript code whose operations were not visible to users and to which users had not consented. The data collected included clicks, scrolling, and keyboard input. It was alleged that while the software might help the hospitals to improve their websites, the software suppliers got to use the unlawfully “intercepted” data for their own commercial purposes.
On the basis of these allegations, the complaints asserted a claim for violation of the state wiretap act, G.L. c. 272, §99. In denying motions to dismiss, the judge adopted an expansive definition of what “wire communication” means in the act. She rejected the argument that the communications intended to be protected by the 1968 act are limited to conversations. NELF and co-amicus Associated Industries of Massachusetts filed an amicus brief urging the Court to examine the text of the statute against the background out of which it emerged; the court should then rule against the plaintiff and so head off a stampede of million-dollar copycat cases.
Specifically, NELF set out the historical background of the act and explained that the heightened public concern about post-World War II technical advances in electronic surveillance took two forms. Eavesdropping involved acoustic interception of conversations, typically by a microphone, and wiretapping involved the interception of conversations that had been converted to electricity and sent along a wire to a distant recipient. Thus, in the wiretapping act, the interception of “oral communication” and “wire communication” refers solely to the interception of conversations; browsing actions monitored by website software are not covered by the act. NELF bolstered its reasoning with a careful reading of the statute, comparing it to the related 1968 federal statute.
“Unlike the cognate federal law, which was updated decades ago, the technological limitations of the 1968 Massachusetts law are glaring,” said NELF Staff Attorney John Pagliaro, author of the amicus brief. “It dates from an era when the Beatles were still together, direct long-distance dialing was still a novelty, and DARPA (the Defense Advanced Research Projects Agency) had just started a top-secret research program that would lead, years later, to the modern internet.”
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About the New England Legal Foundation: Founded in 1977, the New England Legal Foundation (NELF – www.newenglandlegal.org) is the leading non-partisan, non-profit public interest law firm in the region dedicated to economic liberty. NELF’s ongoing mission is to champion free enterprise, property rights, limited government based on rule of law, and inclusive economic growth. We believe that free enterprise is a foundational value of a democratic society and the best opportunity for people to lift themselves to prosperity.