MA High Court Rules Online Tracking Doesn’t Violate Massachusetts Wiretap Law

In a closely watched decision, the Massachusett Supreme Judicial Court issued a 5-1 ruling in Vita v. New England Baptist Hospital that concluded that the types of transmissions covered by the state’s wiretap law do not include third-party website tracking technology, like pixels or analytics trackers. While Massachusetts Wiretap Act prohibits intercepting communications, the court found that the law is ambiguous as to whether website browsing activity is communication covered by the law. “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,” the court declared. The judges affirmed that web browsing, or a user’s interaction with a website, is not a covered communication under the act, as it is not a person-to-person communication.

The ruling grew out of a lawsuit brought by patient Kathleen Vita, who alleged that New England Baptist Hospital and Beth Israel Deaconess Medical Center ran afoul of the state wiretap law by configuring their websites to transmit analytics data to Google and Meta, via Google Analytics and the Meta Pixel. Her complaint included allegations that she used the hospitals’ websites to research doctors, seek information about symptoms, conditions and medical procedures for herself and her husband, and access her husband’s medical records.

The plaintiff’s case, like other similar lawsuits against medical centers and tech companies, came soon after The Markup reported that 33 of the country’s top 100 hospitals have the Meta Pixel on their sites.

Although the Massachusetts Supreme Judicial Court held tracking software use does not violate the state’s Wiretap Act, the court acknowledged that there may be other claims outside of the Wiretap Act, and businesses still should consider the host of privacy laws regarding tracking website user interactions. Moreover, privacy proponents in the state could also put increasing pressure on the Massachusetts Legislature next year to broaden existing laws to encompass the tracking alleged in the case.

Agencies should continue to be mindful that their clients’ websites will remain subject to a patchwork of shifting and sometimes inconsistent state and federal privacy laws and regulations that govern the use of online tracking technologies. Courts in other states have reached conflicting conclusions under various state privacy and wiretap laws on the same topic. Brands and agencies should continue to closely monitor this evolving area of law, and consider reaching out to legal counsel before adopting tracking technologies that interact with consumer health data to ensure adoption of proper risk mitigation measures.

The ongoing wave of class action lawsuits focused on website tracking technologies under state wiretapping and telecommunications laws tracks with other federal regulatory effects to rein in the use of online tracking technologies for healthcare entities.

Learn more about the evolving health data privacy landscape and how agencies can build compliance strategies here.

Have questions about the MA court ruling on online tracking technologies? Please contact Amanda Anderson, 4As VP of Government Relations.