On October 24, 2024, the Supreme Judicial Court of Massachusetts issued its highly anticipated decision in Vita v. New England Baptist Hospital, rejecting a plaintiff’s attempt to pin Wiretap Act liability on two hospitals that used pixel technology on their websites. This is a major win for companies that have been on the receiving end of class action lawsuits related to their use of pixels and other tracking technologies. If the precedent set by the court here is followed by other states, this has the potential to meaningfully mitigate the success plaintiffs have in these types of cases moving forward (at least under similar theories of liability).
This decision is particularly notable because it is the first decision by a state Supreme Court that grapples with how to apply state analog-era wiretap statutes to modern pixel technology. However, it is unlikely to be the last as plaintiffs continue to bring lawsuits against companies for their use of trackers under these older state wiretapping statutes (particularly California’s Invasion of Privacy Act). Companies should pay close attention to how these court cases are playing out to evaluate their potential litigation risk moving forward.
Companies should also be aware of regulatory scrutiny in this area, particularly if they are in a highly regulated industry, such as healthcare. We have seen regulators at both the state and federal level indicate their interest in this topic. Even if the threat of litigation is somewhat mitigated by this decision (and future other ones like it), regulators may continue to push on this issue.
We have provided a brief overview of this case below. Please subscribe to the WilmerHale Privacy and Cybersecurity Blog to stay up to date on these developments and more.
Analysis of the Decision
The lawsuit centers on the state’s 1968 Wiretap Act, which prohibits the interception of “any wire or oral communication[.]” MASS. GEN. LAWS ch. 272, § 99(C)(1). The plaintiff alleged that New England Baptist Hospital and Beth Israel Deaconess Medical Center violated the Act by employing third-party web trackers to track user browsing activity on the hospitals’ websites. Vita v. New England Baptist Hospital, SJC-13542, 2024 WL 4558621, at *4–*5 (Mass. Oct. 24, 2024). According to the plaintiff, she browsed “information available to the public on the hospitals’ websites regarding doctors . . . and medical symptoms, conditions, and procedures” and that the hospitals’ use of the software unlawfully intercepted protected “wire communications” without her consent. Id. at *1.
The court first concluded that the term “communication” was ambiguous as applied to plaintiff’s “interactions with the hospitals’ websites.” Id. at *7. It further determined that the Act’s legislative history demonstrated concerns about “a different type of surveillance.” Id. On the basis of these conclusions, the court employed a rule of statutory construction typically used in criminal cases that is also applicable where there is a civil remedy for a criminal violation—the rule of lenity—to conclude that the hospital defendants deserved the “benefit of any rational doubt” as to the scope of the Act’s prohibition. Id.(quoting Commonwealth v. Montarvo, 486 Mass. 535, 542 (2020)).
Several other states’ wiretap statutes include both civil and criminal penalties (including those in California, Maryland and Washington DC), which means the rule of lenity could come up again in cases in other state courts. One thing is clear: Moving forward, courts will increasingly be asked to apply statutes designed to regulate analog technologies in the digital age. As the court’s opinion in Vita illustrates, interpretive standards like the rule of lenity could prove critical to ensuring that state laws like these are not stretched beyond their intended scope.
