Massachusetts’s top court has ruled that a 1960s wiretapping law prohibiting eavesdropping on electronic communications such as phone calls does not bar website operators from collecting users’ browsing activities, without their consent, using popular analytics tools produced by the likes of Google and Meta.
The Massachusetts Supreme Judicial Court ruled 4–3 on Oct. 24 that the use of tracking software such as Meta Pixel or Google Analytics by website operators, including health care providers, does not violate the state’s wiretap law. The court concluded that these tracking tools, which collect user data for analytics or advertising purposes, do not constitute the type of “communication” protected under the law.
“Based on our review of the text of the wiretap act and its legislative history, we cannot conclude with any confidence that the Legislature intended ‘communication’ to extend so broadly as to criminalize the interception of web browsing and other such interactions,” the majority opinion, authored by Justice Scott Kafker, reads.
The case was brought by Kathleen Vita, a Massachusetts resident who claimed that two hospitals—New England Baptist Hospital and Beth Israel Deaconess Medical Center—violated state privacy laws by using tracking software to collect sensitive information shared on their websites.
