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October 31, 2024
Through its Amicus Brief, the Chamber and the Massachusetts Nonprofit Network Successfully Urged the SJC to Avoid Applying the Wiretap Act to Everyday Website Traffic.
On Thursday, October 24, the Supreme Judicial Court of Massachusetts (SJC) ruled that the 1968 Wiretap Act does not apply to consumers’ everyday interactions with a website in Vita vs. New England Baptist Hospital (SJC-13542). Had the decision affirmed a lower court decision, businesses and nonprofit entities in the Commonwealth may have been subject to massive civil and criminal penalties, threatening their ability to operate in Massachusetts.
The Chamber, partnering with the Massachusetts Nonprofit Network, submitted an amicus brief in the case arguing a Superior Court’s decision allowing this type of lawsuit to proceed was contrary to the Court’s recent cases that narrowly interpret the Wiretap Act, diverged from the legislative intent of the Wiretap Act, disregarded the significant difference between website browsing and telephone calls. The 1968 Wiretap Act criminalizes eavesdropping on conversations of two parties, but website browsing is a multi-party activity, involving publicly accessible servers and commonly used notice of “cookies” and other technologies to monitor online activity.
Thankfully, the SJC decision holds that the definition of “communication” under the Wiretap Act does not clearly include a consumer’s interactions with a website. As a result, the Rule of Lenity, which requires ambiguous criminal statutes to be read to favor the defendant, requires the Court to hold that the statute does not extend that far. This should end the attempt by plaintiffs’ attorneys to use the Act against Massachusetts businesses and nonprofits conducting normal internet tracking.
The Chamber applauds the common-sense decision of the Court, and looks forward to continuing to advocate for policies to ensure that all people and all businesses can thrive in the Commonwealth.
https://www.ma-appellatecourts.org/docket
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