Keypoint: Massachusetts’ highest court ruled the use of software that tracks users’ activity on its website does not violate the state’s Wiretap Act, which was intended to prevent the recording or interception of communications between two or more persons.

On October 24, the Massachusetts Supreme Judicial Court held the state’s wiretapping act did not apply to the collection of users’ browsing activities on websites. In Vita v. New England Baptist, Massachusetts’ highest State Court held in a 5-1 decision that although the law did not define “communication,” it nevertheless was limited to communications between individuals and did not extend to cover a user’s browsing on a website. This decision, which is limited to the Massachusetts Wiretap Act, establishes that website operators can use tracking tools like Meta Pixel and Google Analytics to gather users’ browsing data without their consent, highlighting the limitations of the decades-old surveillance laws in addressing modern privacy concerns. Notably, several California courts have reached opposite conclusions under the corresponding California wiretapping laws (commonly known as CIPA Section 631(a)).

In the below article, we provide an overview and analysis of the Massachusetts Supreme Judicial Court ruling and the potential impact on the wave of privacy litigation ongoing in California Courts.