October has offered valuable insights for companies managing privacy obligations related to user tracking, with courts issuing opinions on various wiretap laws and the Video Privacy Protection Act (VPPA) in the context of online user interactions. The Massachusetts Supreme Judicial Court ruling and the Second Circuit’s decision in Salazar v. National Basketball Association both provide insight yet deepen uncertainty as courts increasingly diverge on digital privacy interpretations under pre-internet state and federal law.
Massachusetts Supreme Court finds wiretapping laws inapplicable to web tracking
In early October, the Massachusetts Supreme Judicial Court clarified the state’s wiretapping laws, ruling they do not apply to passive data collection via web-tracking software, such as Meta Pixel and Google Analytics. In Vita v. New England Baptist Hospital, the court emphasized that these tools do not fall under traditional wiretapping statutes intended to prevent unauthorized audio interception. For companies, this ruling narrows the scope of wiretap liability in Massachusetts, providing more predictability in using web analytics' technologies without falling afoul of privacy laws.
This decision diverges from states like California, where we have seen broader interpretations of consumer privacy rights at the pleadings stage, often imposing more stringent restrictions on digital tracking activities. As Massachusetts narrows its approach, businesses may anticipate clearer, more tech-aligned applications of privacy laws within the state.
Salazar and an expansive interpretation of “consumer” under the VPPA
In contrast, the Second Circuit’s October decision in Salazar introduces new uncertainty under the VPPA, as the court held that Michael Salazar, who subscribed to a free NBA newsletter, could be classified as a “consumer” under the act. This broader interpretation suggests that even minor interactions, like signing up for a free newsletter, could qualify for VPPA protection, originally meant to cover rental and purchase data for recorded content.
This ruling is important for companies, particularly those in digital media, who now face potential privacy litigation based on non-transactional user engagements, potentially expanding compliance obligations across minimal online interactions.
Evolving standards: The importance of informed privacy practices
With Massachusetts clarifying wiretap laws in the context of tracking software and the Second Circuit expanding “consumer” protections under the VPPA, businesses must stay informed of these evolving standards. Understanding the boundaries of state and federal privacy laws is essential for developing responsible tracking practices that align with shifting interpretations. As courts continue to navigate the complexities of digital privacy, companies should regularly review to ensure their practices remain adaptable to avoid potential compliance challenges across jurisdictions.
