(CN) — Two Boston hospitals on Wednesday pleaded with an appellate court to dismiss suits accusing them of using internet tracking technologies to illegally eavesdrop on patient communications.
The twin class actions led by plaintiff patient Kathleen Vita accuse New England Baptist Hospital and Beth Israel Deaconess Medical Center of using technology that allowed Google, Facebook and other third parties to intercept patients' online data to target them with advertisements.
“By enabling the interceptions, defendants breached their express promise not to share any communications they received through the websites with any outside parties,” Vita wrote in her appellate brief.
Last year, a lower court denied the hospitals’ attempt to dismiss the Massachusetts Wiretap Act claims, rejecting their argument that the law doesn’t apply to internet browsing.
But affirming that ruling could be a slippery slope, the hospitals argued Wednesday before a Massachusetts Supreme Judicial Court panel, considering how widely ad tech is used on other websites — including the state government's official site.
The hospitals accuse Vita of “seeking to weaponize” the Wiretap Act, potentially creating a massive liability for website owners that use the common ad tech software.
“This is the same technology that’s sitting on Mass.gov right now, including this court’s website,” said the hospitals’ attorney, David Gacioch. “We’re not getting paid to sell data.”
Justice Scott Kafker pushed back, telling Gacioch he “hopes” the disclaimer on Massachusetts’ site is broader than those provided by the hospitals, which fail to mention that they share data with Google and the other third parties.
“It’s funny that you mentioned that, Justice Kafker,” Gacioch said. “Because the notice at the time when this lawsuit was filed was very similar — not word-for-word identical — but the Mass.gov notice and our notices at the time were very similar.”
Gacioch added that Vita only claims she “browses the website to review preexisting content” and never used a chat function that could raise more substantial questions under the Wiretap Act. The attorney said Vita can’t argue that the hospitals eavesdropped on her illegally since she never had any applicable conversations.
“There are more disclaimers of what she didn’t do in the footnotes of her complaints than there are allegations about what she specifically did,” Gacioch said. “All she alleges is that she went, sought out and received preexisting content.”
That was the biggest point of contention: whether or not Vita’s browsing activity alone constitutes a “conversation” under the Wiretap Act. Vita’s lawyer Patrick Vallely said it absolutely does.
“The short answer is yes,” he said. “The definition that we focus on is the definition of wire communication… the definition refers to transmissions between points of origin and points of reception.”
That language, Vallely said, describes “exactly what the internet is.”
Vallely said the broad interpretation of the Wiretap Act was exactly what legislators had in mind when passing the law, even though it doesn't explicitly mentioning web activity.
“Back in 1968, the legislature didn’t specifically anticipate the internet as a technology,” Vallely said. “But what it made very clear… is that it understood that new technologies would continue to be developed over the years that pose threats to the privacy of citizens of the commonwealth.”
The justices didn’t immediately issue a ruling on Wednesday. When they do, however, the implications could be significant. Should they decide web tracking isn’t excluded from the state’s Wiretap Act, then virtually every website using ad tech could be liable to similar litigation.
Rounding out Wednesday’s six-judge panel, alongside Kafker, were Justices Dalila Wendlandt, Serge Georges, Elizabeth Dewar, Frank Gaziano and Kimberly Budd.
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