Beyond Massachusetts: How One State’s Wiretap Ruling Could Encourage Courts and Legislatures to Rethink Privacy Laws
Nationwide, plaintiffs continue to file lawsuits against companies that collect user information through their websites, arguing that these practices violate old state wiretap laws. These plaintiffs urge courts to apply traditional privacy protections to the digital landscape, with the recent Massachusetts Supreme Court decision adding its voice to the debate. While the Court held for the defendants, its lengthy analysis of wiretap law could encourage other state courts or legislatures to take on the issue.
In Vita v. New England Baptist Hospital et al, the plaintiff sued under the Massachusetts Wiretap Act claiming that two hospitals violated the law by sharing her browsing history without her consent. The complaint alleged that the plaintiff’s browsing activities on the hospitals’ websites should be considered “wire communication[s]” and the hospitals “intercept[ed]” these communications by sharing the information with third parties for advertising purposes. For example, the hospitals allegedly tracked the content of searches on their websites and whether users accessed patient portals for medical records. The plaintiff did not assert that private patient records or messages to nurses, doctors, or other healthcare providers were shared.
The National Consumer Law Center and the Electronic Privacy Information Center filed a brief in support of the plaintiff. These organizations urged the court to consider that “state wiretap acts are often a powerful way to limit harmful online tracking” and that the collection of personal information is an injury to consumers. The brief also argued that the hospitals could have shielded liability by disclosing that they tracked private health information to share with third parties and by obtaining user consent.
Despite these briefs, the Massachusetts Supreme Court shot down the plaintiff’s claim when it reversed the lower court’s denial of the defendant’s motion to dismiss. In a thorough analysis, the court concluded that the Massachusetts Wiretap Act did not apply to the interception of web browsing. The court reasoned that the legislature created the statute to prohibit electronic eavesdropping on person-to-person interactions, including landline telephone calls, text messages, emails, internet chats, or other interpersonal conversations using technology. Because the plaintiff’s interactions were with a website, and no personal conversations or messages were intercepted, web browsing cannot be considered “communication” under the Wiretap Act. Furthermore, nothing in the statute revealed that the legislature intended to include web browsing as “communications.”
The majority opinion was met with disagreement. In the dissenting opinion, Justice Wendlandt argued that “communication” in the Wiretap Act did cover the plaintiff’s interactions on the website. She reasoned that the legislature intended to protect privacy rights against evolving technology, which should include website tracking. Furthermore, the hospital did not disclose the extent of third-party tracking utilized on its websites. The dissent agreed with the majority opinion on one thing, the Massachusetts legislature would have to correct the court’s error.
The dissent agreed with the majority opinion on one thing, the Massachusetts legislature would have to correct the court’s error.
Although the Massachusetts Supreme Court ruled in favor of the hospitals, the opinion was not unanimous, and state courts may be inclined to take a deeper look at their privacy laws. Some states may be persuaded by the dissenting opinion and find that their legislature intended for privacy laws to adapt to the constantly evolving digital world. Courts may also not want to leave the issue for the legislature, as doing so may take years to resolve.
When courts dive deeper, the success of a plaintiff’s claim may rest on individual state privacy laws. For example, in North Carolina, claims asserting that the Wiretap Act was violated because of web browsing tracking may be unsuccessful. North Carolina’s Wiretap law only requires one-party consent, meaning that only one party must consent to the interception of a communication for it to be legal. On the other hand, thirteen states require both parties’ consent, and plaintiffs are more likely to succeed in asserting claims against companies that track web browsing activities without prior authority.
As online tracking claims increase, courts are challenged with applying dated wiretap law to the digital marketplace. The Massachusetts’s Supreme Court’s recent decision may encourage both state courts and state legislatures to visit the issue. Courts may ultimately decide that state wiretap law should be addressed by the legislature. But in reaching that conclusion, courts may engage in a thorough analysis of wiretap law and encourage the legislature to revisit privacy issues as they emerge with technological advancements.
Madigan Wolford
Maddy attended the University of Tampa for college where she majored in Business Management. In her free time, she enjoys reading, hiking, and watching the Buffalo Bills.