A MoFo Privacy Minute Q&A: Massachusetts’ High Court Rejects Wiretap Claims Over Online Tracking

This is A MoFo Privacy Minute, where we answer the questions that our clients are asking us in sixty seconds or less.

Question: The highest court in Massachusetts has ruled that online tracking does not violate the state’s wiretapping law. How does the decision impact the wiretap litigation landscape and what should I know?

Answer: The Massachusetts Supreme Judicial Court was asked whether the use of certain online tracking technology constitutes illegal wiretapping under Massachusetts law. The Court’s answer was a resounding “no,” and companies employing such technology on their websites may continue to do so without violating the state’s wiretap statute. The case brings significant clarity to website operators and online tracking technology companies in the face of attempts by the plaintiffs’ bar to extend the application of the state’s wiretap statute to contemporary digital contexts.

Specifically, the Massachusetts Supreme Judicial Court recently held in a 5-1 decision that Massachusetts’ wiretap statute was not intended to apply to website operators’ use of third-party software to monitor website browsing and query activities. Wiretap laws, which were originally designed to protect against traditional forms of eavesdropping, have been the subject of an ongoing wave of data privacy litigation in federal and state courts across the country. This opinion marks the first time the highest court in any state has refused outright to extend a wiretap law to online tracking activities.

Key Points of the Opinion

• Statutory Analysis: The Court recognized that wiretaps historically involved either (1) the interception of person-to-person conversations using hidden electronic surveillance devices placed in people's homes or businesses or (2) the use of electronic devices to tap into a telephone line to eavesdrop on person-to-person communications. While acknowledging that the wiretap statute may prohibit eavesdropping on more modern means of communication, the Court held that the use of online tracking software does not involve person-to-person communications.
• Rule of Lenity: The majority applied the rule of lenity, which shows deference to defendants in cases where the applicability of criminal law to certain conduct is unclear, holding that it is ambiguous whether browsing and interacting with a public website constitute a “wire communication” under the statute. The Court stated that any intention to criminalize web browsing tracking must be explicit.

Implications

The ruling may prompt legislative efforts, especially in other states where wiretap litigation is extensive, to clarify whether states’ wiretap laws apply to online tracking technology (or expand those statutes to do so). Further, while rejecting the wiretap claims, the Court noted that common law and/or consumer claims may still be viable. Businesses should be aware of these potential liabilities and the prevalence in wiretap litigation across the country.

While there is uncertainty about the long-term viability of these wiretap claims, businesses should monitor developments in this space and consider options to mitigate risk, including by:

• Analyzing whether online tracking technologies are functioning in the way intended, including auditing the data elements captured;
• Drafting clear policies regarding the use of online tracking technology and clearly and conspicuously disclosing any data collection by third parties;
• Reviewing online tracking technologies employed on their websites to ensure third parties cannot use data for their own purposes without user consent; and
• Where feasible, obtaining consent from users for the collection and use of their data, such as with a pop-up banner.