NELF Urges the Massachusetts High Court to Reject Bogus but Costly “Wiretapping” Claims

NELF Urges the Massachusetts High Court to Reject Bogus
but Costly “Wiretapping” Claims

Vita v. Beth Israel Deaconess Medical Center et al.
(Massachusetts Supreme Judicial Court)

March 13, 2024

This appeal will determine the outcome of about two dozen other pending cases as well as whether scores of future cases ever get filed.  The issue is whether use of certain browser tracking software may constitute a violation of the state’s wiretapping statute.  NELF and Associated Industries of Massachusetts (AIM) have filed an amicus brief urging the Court to examine the text of the statute and the background out of which it emerged and then to rule against the plaintiffs and head off a stampede of million-dollar copycat cases.

In 2022 Partners Healthcare, now Mass General Brigham, settled a class action lawsuit for $18.4 million after losing a motion to dismiss on the issue.  As in that case, it is alleged here against two hospitals that they track users’ website activities with embedded JavaScript code (called “Adtech”), whose operations are not visible to users and to which users have not consented.  The data collected may include user clicks, scrolling, and keyboard input.  It is alleged that while Adtech may help the hospitals to improve their websites, the Adtech suppliers get to use the “intercepted” data for their own commercial purposes.

On the basis of these allegations, the complaint asserts a claim for violation of the state wiretap statute, G.L. c. 272, §99.  In denying motions to dismiss, the judge adopted an expansive definition of what “wire communication” means in the statute.  She rejected the argument that the communications intended to be protected by the 1968 statute are conversations, typically spoken on the telephone, and not clicks and scrolls on a modern computer.

In their amicus brief supporting the hospitals, NELF and AIM set out the historical background of the statute.  NELF and AIM explain the heightened public concern about post-World War II technical advances in electronic surveillance, which took two forms.  Eavesdropping involved acoustic interception of speech, typically by a microphone, and wiretapping was understood to be the interception of speech that had been converted to electricity and sent along a wire to a distant recipient.

NELF and AIM explain that the trial judge did not understand that in the statute to intercept “oral communication” and “wire communication” simply reflected those two modes of intercepting speech, respectively.  For that reason, browsing actions monitored by the software are not covered by the statute.  NELF and AIM bolster their conclusion with a careful reading of the statute, comparing it to the related 1968 federal statute and examining relevant sections dealing with warrants.

“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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