By Sam Larson
Vice President, Government Affairs

The Massachusetts Supreme Judicial Court (SJC) last week agreed with a position taken by AIM that the state’s wiretapping act does not cover tracking a computer user’s interactions with websites.

The Court found in a case brought against Beth Israel Deaconess Medical Center and New England Baptist Hospital that internet cookies and the hospitals’ sharing of site visitors’ browsing history wasn’t the kind of interpersonal “communications” covered by the 1968 state wiretap law. While case law has expanded the parameters of the wiretap statute to other technologies unknown in the ’60s — cellphones, email — the court decided that cookies are so different that they would require new legislation.

The court’s ruling vindicates the view taken in an amicus brief filed by AIM and the New England Legal Foundation (NELF) that the act is not intended to reach beyond the interception of conversations. Expanding the wiretap law to cover internet cookies would have created huge financial liabilities for thousands of companies throughout Massachusetts.

The plaintiff had alleged that the act was violated each time that she visited a hospital website and software transmitted information about their activities to Google or Facebook.  The court’s exhaustive 47-page decision seals the fate not only of these two cases but also that of about two dozen other pending cases, as well as forestalling those that would otherwise have been filed in the future against thousands of Massachusetts businesses and non-profits. 

“Ultimately, we cannot conclude that the wiretap act unambiguously prohibits and, indeed, criminalizes the interception of web browsing activity, because there appears to be a difference in kind and not degree between interactions on a website available to the public and private conversations in your house or on your telephone. Browsing and accessing the information published on a website is significantly different from having a conversation or sending a message to another person,” Justice Scott Kafker wrote for the majority.

The NELF/AIM amicus brief read the 1968 act against its historical background of heightened public concern that the privacy of conversations might be lost through technical advances in electronic surveillance.  Specifically, eavesdropping involved acoustic interception of conversations, typically by a microphone, and wiretapping involved the interception of conversations, too, once they had been converted to electricity and sent along a wire to a distant recipient. 

Thus, in the wiretapping act the interception of “oral communication” and of “wire communication” refers simply to those two modes of intercepting conversations; browsing actions monitored by the software cannot be reached by the law.

“The court’s ruling today is sensible and rests of a firm foundation of history and careful textual exegesis,” said NELF Staff Attorney John Pagliaro, author of the amicus brief. “The court rightly observes that the plaintiff’s notion of communication departs from the act’s commonsense notion of it as conversation taking place between people.”

The Court’s decision does not end the threat of data-privacy issues for Massachusetts businesses. AIM anticipates that dozens of bills seeking to regulate the use of customer data with severe penalties will be filed in the legislature next session. The Government Affairs team is working ensure that any reforms will based in common sense and narrowly crafted to protect employers.”

AIM regularly represents the interests of member companies on issues that come before state and federal courts. Please contact me at slarson@aimnet.org to learn more.