KATHLEEN VITA v. NEW ENGLAND BAPTIST HOSPITAL (And a Consolidated Case)

SUPREME JUDICIAL COURT

KATHLEEN VITA[1] vs. NEW ENGLAND BAPTIST HOSPITAL (and a consolidated case[2])

Docket:

SJC-13542

Dates:

April 3, 2024 - October 24, 2024

Present:

Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, & Dewar, JJ.

County:

Suffolk

Keywords:

Electronic Surveillance. Hospital. Internet. Statute, Construction. Practice, Civil, Standing, Motion to dismiss. Words, "Communication," "Interception."

Civil actions commenced in the Superior

Court Department on February 24 and April 7, 2023.

Motions to dismiss were heard by Hélène

Kazanjian, J., and the cases were reported by her to the Appeals Court.

The Supreme Judicial Court granted an

application for direct appellate review.

David Quinn Gacioch (Annabel Rodriguez

also present) for the defendants.

Patrick J. Vallely (Edward F. Haber &

Michelle H. Blauner also present) for the plaintiff.

The following submitted briefs for amici

curiae:

J. Tucker Merrigan, Victoria Santoro Mair,

Ryan M. Hawkins, Ryan P. McManus, Dylan S. O'Sullivan, & Justin Kenney for

John Doe & others.

John Pagliaro & Daniel B. Winslow for

New England Legal Foundation & another.

Michael J. Tuteur, Lawrence W. Vernaglia,

& Morgan McDonald for Massachusetts Health and Hospital Association, Inc.,

& another.

John Roddy & Elizabeth Ryan for

National Consumer Law Center, Inc., & another.

Michael Vatis, of New York, & Michael

J. Mozes for National Retail Federation & another.

Emily Johnson Henn, of California, Mark W.

Mosier, of the District of Columbia, Geoffrey Hobart, & Michael W. Maya for

Chamber of Commerce of the United States of America.

Elka T. Sachs, Ian D. Roffman, Seth P.

Berman, Natalie M. Cappellazzo, & Natalia Peña for Greater Boston Chamber

of Commerce & another.

Robert Kingsley Smith, Neal Quenzer, &

Tobi Henzer for Pioneer Public Interest Law Center.

KAFKER, J.

The plaintiff, Kathleen Vita, alleges that the defendants, New England

Baptist Hospital (NEBH) and Beth Israel Deaconess Medical Center, Inc. (BIDMC)

(collectively, hospitals), violated G. L. c. 272, § 99 (wiretap act or

act), by collecting and transmitting her browsing activities on the hospitals'

websites. In particular, her complaints

against the defendants allege that she accessed and reviewed information

available to the public on the hospitals' websites regarding doctors (including

their credentials and backgrounds) and medical symptoms, conditions, and

procedures, and that these interactions with the websites fall within the

meaning of "wire communication[s]" protected by the wiretap act. Where the hospitals allegedly shared

information regarding Vita's browsing with third parties for advertising

purposes without her consent, Vita alleges the hospitals violated the wiretap

act by "intercept[ing]" her communications. Vita does not allege that private patient

records or messages to nurses, doctors, or other healthcare providers were

intercepted.

Based on our review of the text of the

wiretap act and its legislative history, we cannot conclude with any confidence

that the Legislature intended "communication" to extend so broadly as

to criminalize the interception of web browsing and other such

interactions. When the statute was

enacted, wiretaps involved the interception of person-to-person conversations

and messages using hidden electronic surveillance devices placed in people's

homes or businesses or tapping their telephone lines. See Commonwealth v. Rainey, 491 Mass. 632 ,

645 (2023) (Legislature's chief concern in enacting wiretap act was

"electronic eavesdropping" and wiretapping [citation omitted]). The Legislature crafted the statute to

prohibit new and evolving technological means of secret electronic

eavesdropping on such person-to-person conversations or messaging, whether they

be face-to-face conversations, calls on a landline telephone, cell phone calls,

text messages, Internet chats with other people, e‑mail messages, or other

interpersonal conversations or messaging utilizing future technology. However, Vita's allegations do not claim the

interception of person-to-person conversations or messaging of the kind clearly

within the wiretap act's ambit. The

interactions here are not with another person but with a website. Nor are they personal conversations or

messages being intercepted, but rather the tracking of a website user's

browsing of, and interaction with, information published on a website.

As explained infra, nothing in the text of

the statute makes unambiguously clear that the Legislature intended to reach so

far as to criminalize the secret recording of such web browsing

activities. The statute's text does not

define "communication"; its text contains numerous references to

communications that are person-to-person; and dictionary definitions do not

provide a firm answer either way. The

legislative history is focused on the secret interception of person-to-person

conversations and messaging, particularly private ones. While the Legislature plainly intended the

wiretap act to prohibit future technological means of such interceptions, it is

not at all clear that the Legislature intended the statute's prohibition on

intercepting "communications" to include, as supposed

"communications," the web browsing alleged here.

Because the meaning of

"communication" in this context is ambiguous, we must therefore apply

the rule of lenity. When "we find

that the statute is ambiguous or are unable to ascertain the intent of the

Legislature, the defendant is entitled to the benefit of any rational

doubt" (citation omitted).

Commonwealth v. Montarvo, 486 Mass. 535 , 542 (2020).

If the Legislature intends for the wiretap

act's criminal and civil penalties to prohibit the tracking of a person's

browsing of, and interaction with, published information on websites, it must

say so expressly. Other States and the

Federal government have attempted to update their wiretap laws in response to

technological change and done so in a variety of ways.

Make no mistake, the hospitals' alleged

conduct here raises serious concerns, and may indeed violate various other

statutes and give rise to common-law causes of action more specifically directed

at the improper handling of confidential information, particularly confidential

medical information. And we do not in

any way minimize the serious threat to privacy presented by the proliferation

of third-party tracking of an individual's website browsing activity for

advertising purposes. These concerns,

however, should be addressed to the Legislature.

Because we conclude that the statute is

ambiguous and the rule of lenity should apply, we reverse the Superior Court

judge's denial of the hospitals' motions to dismiss.[3]

1.

Background. a. Facts alleged. "We summarize the factual allegations

set forth in the complaint[s] and in the undisputed documents incorporated by

reference in the complaint[s,] . . . accepting as true all well-pleaded

facts alleged" (quotation omitted).

Six Bros., Inc. v. Brookline, 493 Mass. 616 , 618 (2024), quoting

Osborne-Trussell v. Children's Hosp. Corp., 488 Mass. 248 , 250, 253 (2021).

i.

Hospital websites. BIDMC and NEBH

operate hospitals in the Commonwealth, providing care to patients in Boston and

the surrounding communities. The

hospitals maintain websites, which provide general information about the

hospitals and other medical information to patients and the public. Although the websites also contain separate

patient portals containing patients' personal medical information, Vita does

not allege that the information contained on such patient portals was

intercepted or transmitted to others.

Each hospital's website provided the

following: general information about the

respective hospital; information about healthcare services available at each

provider, addressing specific practice areas and health conditions; a

"Find a Doctor" function to search for physicians by specialty and

location; a portal for patients to access and to pay their medical bills

online; a portal for patients to access their individualized medical

information; and a feature for users to enter search terms to query information

collected on the website. BIDMC's website

additionally provided medical information about specific health conditions,

including information on symptoms, causes, diagnoses, and treatments, and it

also allowed patients to schedule appointments through an online portal.

ii.

Vita's browsing activities. While

the complaints make numerous allegations regarding users of the hospitals'

websites generally, which we describe below, Vita alleges that she herself

regularly used the websites to (1) obtain information about doctors (including

their credentials and backgrounds); (2) search for information on particular

symptoms, conditions, and medical procedures, both for herself and her husband;

and (3) obtain and review her husband's medical records through the website's

patient portal. She does not, however,

allege that her husband's medical records or the contents of his patient portal

were in any way collected, intercepted, and transferred to third parties; that

any messages between her or her husband or other users and health care

professionals were intercepted or transmitted to others; or that she used the

hospitals' websites to schedule appointments.

iii.

Data that the hospitals allegedly collected.[4] Although not specific to Vita's own use of

the hospitals' websites, the complaints also allege that the hospitals tracked

the following information regarding users visiting the hospitals'

websites: (1) the uniform resource

locator (URL)[5] of the webpages visited; (2) the titles of those webpages; (3)

data about a user's web browser and device configurations (e.g., screen

resolution, device information, and browser settings); (4) the unique

identifiers used by third-party software providers to track individuals across

the website; and (5) a user's Internet protocol (IP)[6] address. According to the complaints, this information

permitted third-party software providers to create "browser

fingerprints," which were capable of associating a particular individual

with a unique combination of web browser settings.

Vita also alleges that certain information

about a user's activities on the hospitals' websites was collected. This information included the following: (1) how, when, and where a user scrolled and

clicked through different parts of a webpage;[7] (2) whether a user navigated

to a webpage containing a form for new patients requesting appointments, as

well as the department the user selected, and whether the user submitted the

form, although not the information the user entered into the form (with the

exception of the department selection);[8] (3) the contents of any search a

user made on the websites; (4) the filtering criteria selected by a user on the

"Find a Doctor" webpage, including specialty, location, gender, and

language; (5) whether the user "reserved a spot" in line at the

hospitals' urgent care; (6) whether the user navigated to the webpage for

paying medical bills; (7) whether the user navigated to the patient portal

where the user could access medical records and other personal medical

information, although not the contents of records or communications within that

portal; and (8) whether, when navigating to the patient portal, the user

clicked the "login" button for existing patients or the "sign up

now" button for patients seeking to create new accounts.[9]

iv.

Third-party tracking software and the sharing of such information for

marketing purposes. Vita alleges that

the websites contained tracking software, developed by third parties, that

allowed the hospitals and third parties to monitor the use of the hospitals'

websites. These third parties included

Facebook and Google, each offering similar software, "Meta Pixel" and

"Google Analytics," which allowed hospitals to track user activity on

their websites. The software

simultaneously collected and transmitted to the third-party software providers

information about the websites' users and the users' interactions with the

websites. The third-party software

providers, in turn, marketed the data to merchants and delivered targeted digital

advertisements tailored to individual users.

Vita's complaints allege that this widespread targeted marketing

activity is highly significant economically.

According to the complaint, "Google derives a substantial portion

of its revenues through individually targeted advertising," and "Facebook

derives most of its revenues from selling targeted advertising to users of its

platforms, including Facebook and Instagram."[10]

v.

The hospitals' disclosures. The

hospitals included a pop-up message on their websites disclosing, "We use

cookies and other tools to enhance your experience on our website and to

analyze our web traffic." The

pop-up messages linked to privacy policies summarized below.[11] Both hospitals had in place nearly identical

privacy policies. The policies

(inaccurately and misleadingly, according to Vita) reassured users that

"[the

hospital] is committed to protecting your privacy. The [hospital's] website allows you to visit

most areas without identifying yourself or providing personal information. For those areas where you elect to provide

identifiable information, we assure you that we make every effort to protect

your privacy."

The hospitals also disclosed that they

"routinely gather[ed] data on website activity, such as how many people

visit the site, the pages they visit, where they come from, how long they stay,

etc.," to "improve site content and overall usage." However, the hospitals represented that such

data "is collected on an aggregate, anonymous basis, which means no

personally identifiable information is associated with the data." The hospitals further claimed that

"[t]his information is not shared with other organizations" and that

"[e]xcept for authorized law enforcement investigations or other facially

valid legal processes, we will not share any information we receive with any

outside parties."

The privacy policies also disclosed

(albeit again allegedly incompletely and misleadingly) some third-party data

tracking or sharing. The hospitals

stated that they and their "Third Party Service Provider[s]"

collected and saved "the default information customarily logged by

worldwide web server software," which included "date and time,

originating IP address and domain name[12] . . . , object requested,

and completion status of the request." They further disclosed that this information

"may be kept for an indefinite amount of time, [and] used at any time and

in any way necessary to prevent security breaches and to ensure the integrity

of the data on our servers."

b.

Prior proceedings. Vita filed

separate complaints –- one against BIDMC and one against NEBH –- each alleging,

on Vita's behalf and purportedly on behalf of a class of similarly situated

persons,[13] that the hospital violated the wiretap act by aiding the

third-party software providers to intercept communications. Each hospital separately filed a motion to

dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). A Superior Court judge denied both motions in

separate opinions; she reported her decisions to the Appeals Court pursuant to

Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996). Subsequently, we allowed the hospitals'

consolidated request for direct appellate review.

2.

Discussion. a. Standard of review. "We review the denial of a motion to

dismiss under Mass. R. Civ. P. 12 (b) (6) . . . de novo." Marsh v. Massachusetts Coastal R.R., 492

Mass. 641 , 645 (2023), cert. denied, 144 S. Ct. 2519 (2024), quoting Dunn

v. Genzyme Corp., 486 Mass. 713 , 717 (2021).

"In doing so, we accept 'as true all well-pleaded facts alleged in

the complaint, drawing all reasonable inferences therefrom in the plaintiff's

favor, and determining whether the allegations plausibly suggest that the

plaintiff is entitled to relief.'"

Marsh, supra at 645-646, quoting Lanier v. President & Fellows of

Harvard College, 490 Mass. 37 , 43 (2022).[14]

See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008)

("Factual allegations must be enough to raise a right to relief above the

speculative level . . ." [citation omitted]).

b.

Standing. We first address the

hospitals' argument that Vita has not alleged an actual injury arising from the

hospitals allegedly aiding third-party software providers to record secretly

her interactions with the hospitals' websites; thus, they contend, Vita lacks

standing to pursue a claim under the wiretap act. See Murchison v. Zoning Bd. of Appeals of

Sherborn, 485 Mass. 209 , 218 (2020) (where plaintiffs "lack standing

. . . we order[] dismissal of the appeal without reaching the

merits").

A plaintiff bears the burden of

establishing standing to bring a cause of action; more specifically, at this

stage, she must plead facts sufficient to "demonstrate a nonspeculative

particular and personal harm" resulting from the challenged action. Murchison, 485 Mass. at 212. See Animal Legal Defense Fund, Inc. v.

Fisheries & Wildlife Bd., 416 Mass. 635, 638 (1993) ("only persons who

have themselves suffered, or who are in danger of suffering, legal harm can

compel the courts to assume the difficult and delicate duty of passing upon the

validity of the acts of [another] branch of government" [citation

omitted]). "A party has standing

when [she] can allege an injury within the area of concern of the statute or

regulatory scheme under which the injurious action has occurred." Penal Insts. Comm'r for Suffolk County. V.

Commissioner of Correction, 382 Mass. 527, 532 (1981), quoting Massachusetts

Ass'n of Indep. Ins. Agents & Brokers v. Commissioner of Ins., 373 Mass.

290, 293 (1977).

Thus, to determine whether a plaintiff has

standing, we look to the statute itself to determine whether the Legislature

intended to confer standing to a person in the plaintiff's position. See, e.g., Massachusetts State Auto. Dealers

Ass'n v. Tesla Motors MA, Inc., 469 Mass. 675, 683 (2014). Relevant here, the wiretap act provides a

private cause of action to "[a]ny aggrieved person whose oral or wire

communications were intercepted, disclosed or used except as permitted or

authorized by this section or whose personal or property interests or privacy

were violated by means of an interception."[15] G. L. c. 272,

§ 99 Q. The act further

provides for statutory damages, regardless of whether the aggrieved person

suffered any actual damages. Id.

Vita alleges that the hospitals violated

the act by assisting third parties to record contemporaneously her interactions

with the hospitals' websites without her consent or knowledge. In her case, those allegations are limited to

searching for information related to doctors and symptoms on the websites. This alleged violation of the act falls

"within the area of concern of the statute . . . under which the

injurious action has occurred."

Penal Insts. Comm'r for Suffolk County, 382 Mass. at 532 , quoting

Massachusetts Ass'n of Indep. Ins. Agents & Brokers, 373 Mass. at 293 . See Pine v. Rust, 404 Mass. 411, 414 (1989)

(wiretap act "grants a civil remedy to any aggrieved person whose

communications were intercepted, disclosed, or used, except as authorized by

the statute"). Thus, Vita has

established standing regarding these claims because she has alleged a

particular, personalized, nonspeculative, injury arising from an alleged

violation of the act.[16]

c.

Statutory construction. As Vita

has standing to pursue her personal allegations, we turn to the main issues in

these cases, particularly the meaning of "communication" and

"interception" under the act, which are questions of statutory

interpretation.

"[A] statute

must be interpreted according to the intent of the Legislature ascertained from

all its words construed by the ordinary and approved usage of the language,

considered in connection with the cause of its enactment, the mischief or

imperfection to be remedied and the main object to be accomplished, to the end

that the purpose of its framers may be effectuated" (citation omitted).

Harvard Crimson,

Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749

(2006). We begin with a statute's plain

language. See Matter of the Estate of

Mason, 493 Mass. 148 , 151-152 (2023). We

do not "interpret words in a statute in isolation"; rather, we

"must look to the statutory scheme as a whole so as to produce an internal

consistency within the statute."

Outfront Media LLC v. Assessors of Boston, 493 Mass. 811 , 818 (2024),

quoting Plymouth Retirement Bd. v. Contributory Retirement Appeal Bd., 483

Mass. 600 , 605 (2019).

"Ordinarily, where the language of a

statute is plain and unambiguous, it is conclusive as to legislative

intent." Six Bros., Inc., 493 Mass.

at 622, quoting Sharris v. Commonwealth, 480 Mass. 586, 594 (2018). But "[w]here the statutory language is

not conclusive, we may 'turn to extrinsic sources, including the legislative

history and other statutes, for assistance in our interpretation.'" HSBC Bank USA, N.A. v. Morris, 490 Mass. 322 ,

332-333 (2022), quoting Chandler v. County Comm'rs of Nantucket County, 437

Mass. 430, 435 (2002).

i.

Statutory background. The wiretap

act makes it a crime to "willfully commit[] an interception, attempt[] to

commit an interception, or procure[] any other person to commit an interception

or to attempt to commit an interception of any wire or oral

communication." G. L. c. 272,

§ 99 C 1. "Wire

communication" is defined as "any communication made in whole or in

part through the use of facilities for the transmission of communications by

the aid of wire, cable, or other like connection between the point of origin

and the point of reception." G. L. c.

272, § 99 B 1. An "oral

communication" is "speech, except such speech as is transmitted over

the public air waves by radio or other similar device." G. L. c. 272, § 99 B 2. "Interception" means to

"secretly hear, secretly record, or aid another to secretly hear or

secretly record the contents of any wire or oral communication through the use

of any intercepting device by any person other than a person given prior

authority by all parties to such communication." G. L. c. 272, § 99 B 4.

The statute provides for both criminal

penalties and a civil remedy for wiretap act violations. Willful interceptions of oral or wire

communications are punishable by a fine of up to $10,000, imprisonment for up

to five years, or a combination of fines and imprisonment.[17] G. L. c. 272, § 99 C 1. The act also criminalizes the possession of

an intercepting device or permitting another person to use such a device, which

is a misdemeanor punishable by imprisonment of up to two years, a fine of

$5,000, or both. G. L. c. 272, § 99

C 5. Willful disclosure or use of the

contents of any wire or oral communication, knowing that the information was

obtained through interception is also a misdemeanor with the same

punishment. G. L. c. 272, § 99

C 3. The statute also provides a civil

remedy for any "aggrieved person whose oral or wire communications were

intercepted, disclosed or used except as permitted or authorized by

[statute]." G. L. c. 272, § 99

Q. "[A]n interception need not rise

to the level of criminal conduct covered by the penal provisions of the law"

to support a civil claim; in particular, a civil claim does not require that

the conduct be willful. Pine, 404 Mass.

at 414 . The act provides for

"actual damages but not less than liquidated damages computed at the rate

of $100 per day for each day of violation or $1000, whichever is higher,"

as well as punitive damages. G. L. c.

272, § 99 Q 1-2. A plaintiff is

also entitled to attorney's fees and other litigation costs. G. L. c. 272, § 99 Q 3.

ii.

Communication. Vita contends that

the meaning of "communication" is broad enough to encompass all her

alleged interactions with the hospitals' websites. We conclude that the statutory term

"communication" is ambiguous as applied to the web browsing

activities allegedly intercepted.

Neither the plain text of the statute nor dictionary definitions make

clear whether such activity amounts to "communication," and the

legislative history is concerned with a different type of surveillance. Thus, the rule of lenity must apply, thereby

entitling the defendants to "the benefit of any rational doubt" in

the construction of the statute (citation omitted). Montarvo, 486 Mass. at 542.

General Laws c. 272, § 99, does

not define the word "communication," but rather the means or method

of "communication" -- i.e., wire or oral.[18] The statute does include, however, a number

of examples of communications that shed at least some light on the

Legislature's intended meaning. For

example, one of the requirements for a warrant under the wiretap act is

"[a] statement that the oral or wire communications sought are material to

a particularly described investigation or prosecution and that such

conversations are not legally privileged" (emphasis added). G. L. c. 272, § 99 F 2 e. The statute also repeatedly references

telephones and telegraphs, carving out permissible activities in relation

thereto. See G. L. c. 272, § 99 B

3, D 1, F 2, I 3, J 1, L 1 (telephone); G. L. c. 272, § 99 B 3,

F 2, I 3, J 1, L 1 (telegraph).[19] The

statute's text thus makes plain the Legislature's intent to address at least

conversations in person or over the telephone or person-to-person messages

communicated through the use of wire or cables.

Accordingly, it does seem clear that the plain meaning of

"communication" includes messages and conversations[20] between

people through the use of wire or cable, including by means of e-mail, text

message, chat, instant message, or the equivalent. Indeed, conversations and messages between

people accord with our common understanding of communications. Private conversations in person or over the

telephone or private person-to-person messages communicated through the use of

wire or cables are the core type of communication the wiretap law was designed

to address. E-mail messages and text

messages also plainly involve person-to-person messaging over a wire or cable,

so those too fall within the plain meaning.

Similarly, online chats and instant messaging, where actual people

communicate with each other, are plainly covered as well, as they involve person-to-person

messaging over a wire or cable.

Notably, however, Vita's complaints do not

allege communications between people in this commonsense way. The complaints repeatedly characterize the

intercepted communications as being between Vita and each hospital's website,

not between Vita and hospital personnel, understandably, given that the

allegedly intercepted communications consist of what would commonly be called

web browsing by Vita.[21] It is far less

clear based on the plain text of the statute that the term

"communication" extends to all interactions between a user and a

website. When a user browses a public

website, and accesses databases and other information readily available to

anyone on the Internet, the user is not speaking or messaging with another

person but rather interacting with the website; the user is also not engaged in

personal conversation or messaging but rather browsing and interacting with the

published information on the website.[22]

While we often turn to dictionaries to aid

in understanding the plain meaning of undefined statutory terms, here,

dictionaries do not provide a ready answer to the question whether web browsing

activities of the kind Vita alleges she engaged in amount to

"communication" with the website on which one is browsing or with the

website's owner or author.[23] Most

definitions of "communication" refer to an "interchange" or

"exchange" of information, implicitly between people, but without

expressly defining who or what need be on either end.[24] Some definitions, are even more explicit,

referencing persons or individuals on both sides of a communication, thereby

strongly suggesting that mere accessing of information published on a website

may not qualify. See, e.g.,

Merriam-Webster Online Dictionary, https://www.merriam-webster.com/?dictionary

/communication

[https://perma.cc/7VX3-KSG7] (defining communication as "a process by

which information is exchanged between individuals through a common system of

symbols, signs, or behavior" [emphasis added]); Oxford English Dictionary

Online (defining communication as "[i]nterpersonal contact, social

interaction, association, intercourse"); Black's Law Dictionary 350 (12th

ed. 2024) (defining communication as "the process of bringing an idea to

another's perception" [emphasis added]).

In attempting to argue nonetheless that

the term "communication" in the statute does unambiguously encompass

web browsing, Vita relies on the preamble of the wiretap act. The clause Vita focuses on states that

"the uncontrolled development and unrestricted use of modern electronic

surveillance devices pose grave dangers to the privacy of all citizens of the

[C]ommonwealth," and thus the "secret use of such devices by private

individuals must be prohibited." G.

L. c. 272, § 99 A. This clause

doubtless does state the Legislature's intent to protect the Commonwealth's

citizens from the threat to privacy posed by evolving modern methods of

electronic surveillance.[25] And, as

discussed, the term "communication" in the wiretap act doubtless does

extend today to protecting person-to-person communications from Internet-based

means of interception. However,

notwithstanding the clause's plain statement of the Legislature's intent to protect

citizens' privacy against new surveillance methods, the clause does not

directly address the nature of the protected communications themselves and

whether, as here, the act protects against interception of the act of browsing

a website, rather than a person-to-person communication.

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. In essence, we are not here dealing with just

new means of communication, such as the difference between communicating with

another person on a cell phone rather than a landline, or a text message rather

than a telegraph message. See

Commonwealth v. Moody, 466 Mass. 196, 198 (2013) (concluding wiretap act

applies to interception of cell phone calls and text messages). Browsing and accessing the information

published on a website is significantly different from having a conversation or

sending a message to another person.[26]

As explained previously, the user is not communicating with another

person but instead interfacing with pre-generated information on a

website. The user is also not engaging

in a conversation but accessing published information and databases.[27] Given these differences, we cannot conclude

based on the relevant text of the statute that the Legislature unambiguously

intended to criminalize activities that do not capture such person-to-person

communications or messaging.

In sum, the text of the wiretap act is

inconclusive at best as to whether website browsing is a

"communication" protected by the act.[28]

iii.

Legislative history. As the text

of the statute does not resolve the ambiguity, "we may 'turn to extrinsic

sources, including the legislative history . . . for assistance in our

interpretation.'" HSBC Bank USA,

N.A., 490 Mass. at 332-333. When we do

so here, we conclude that the Legislature was chiefly concerned about the

secret recording or monitoring of person-to-person communications. There is nothing in that legislative history

suggesting that the Legislature intended to extend the act, and its criminal

penalties, beyond the interception of person-to-person conversations or

messaging.

From the very beginning, the Legislature

repeatedly referred to eavesdropping on private conversations and the use of

covert electronic recording devices that could be placed in a home or business

or used to tap a telephone. In 1964 the

Legislature established a commission for the "investigation and study of

the laws relative to eavesdropping and the use of any electronic recording

device, or wireless tap or electronic tap" (emphasis added). Senate Bill No. 201 (1964). See Commonwealth v. Tavares, 459 Mass. 289,

294-295 (2011).

An interim committee report from April

1967 described various eavesdropping devices that were commercially available.

See 1967 Senate Doc. No. 1198, at 3.

These included the "parasite bug," a "subminiature

transmitter less than half the size of a pack of cigarettes, which broadcasts

both sides of a telephone conversation."

Id. There was also the "room

bug," capable of "transmit[ting] a very clear signal at least [seven]

blocks in downtown Boston" and "pick[ing] up a whisper at [twenty]

feet." Id. See Rainey, 491 Mass. at 645 ("In April

1967, the commission issued an interim report, which focused on various types

of 'eavesdropping devices,' namely 'bug[s]'"). The future development of such eavesdropping

devices was recognized to be particularly "frightening" and

unpredictable. See 1967 Senate Doc. No.

1198, at 4. See also Commonwealth v. Hyde,

434 Mass. 594 , 608 n.7 (2001) (Marshall, C.J., dissenting) ("The [April]

1967 Report makes clear that what concerned the Legislature were 'eavesdropping

devices' ['bugs'] and other sophisticated inventions of then-recent origin

. . ."). This report also

noted the recent discovery that the New England Telephone and Telegraph Company

intercepted "customer-to-customer calls and customer-to-company

calls" in order to check "the performance of the company's equipment

and employees." 1967 Senate Doc.

No. 1198, at 4. See Commonwealth v.

Ennis, 439 Mass. 64 , 68 n.10 (2003) (noting that special commission's concern

about secret electronic eavesdropping by private citizens was spurred by not

only testimony about bugging devices but also revelation that telephone company

"secretly record[ed] private telephone calls").

Later commission reports also repeatedly

referred to the recording of or listening in on private conversations. See, e.g., 1967 Senate Doc. No. 1469, at 2

("the availability of instruments for overhearing secretly private

conversations is immense"); 1968 Senate Doc. No. 1132, at 9 (proposing

revision of wiretap act "to strictly prohibit electronic eavesdropping and

wiretapping of other persons' conversations without permission"). Commissioners Elliot B. Cole and William P.

Homans, Jr., concurred in the legislative recommendations, but wrote separately

to emphasize the importance of the all-party consent requirement in the

proposed law. 1968 Senate Doc. No. 1132,

at 10. They voiced an overarching concern

about the secret interception and recording of private conversations, quoting

an academic who explained that "the individual expresses his personality

in private conversations." Id. at

12. See Hyde, 434 Mass. at 608 n.6

(Marshall, C.J., dissenting) ("A concurring report filed by two members of

the special commission, [Cole and Homans], makes abundantly clear that the

'prohibition of wiretapping and eavesdropping by the public' was to protect the

privacy of citizens engaged in personal conversations").

This legislative history is therefore

directed at the invasion of privacy and threat to free expression from secret

surveillance of private conversations.

See Commonwealth v. Rivera, 445 Mass. 119 , 127 n.10 (2005) ("The

report giving rise to the statute noted repeatedly that the commissioners were

concerned with the protection of private 'conversations,' particularly by

devices used to monitor telephone lines and by devices placed in private

locations"). Electronic

"bugs" that could be covertly placed in a home or business or that

could tap a telephone line to listen in on such conversations were also of

particular concern, and the Legislature recognized that scientific developments

here were especially frightening. See

1967 Senate Doc. No. 1198, at 4; Rivera, supra.

As the Internet did not exist, there was,

of course, no discussion of whether the tracking and sharing of a user's

browsing or other activity, via software and computer code, on public websites

would be considered criminal. Indeed,

there was no discussion whatsoever of computers or software in the legislative

history. Nor was there any discussion of

what might be considered historic analogies to website analytics and

advertising, such as television[29] stations monitoring what shows or

commercials viewers were watching or businesses or nonprofit organizations tracking

brick-and-mortar or mail-order purchasing decisions or inquiries, or compiling

customer lists, and sharing such information with other businesses or

nonprofits without the customer's consent.

Any such discussion in the legislative history might have provided some

suggestion that the Legislature was prepared to extend the application of the

act, and thus the meaning of "communication" and

"interception," well beyond the covert interception of private

conversations and private messages.

There is, however, nothing like that in the legislative history.

The legislative history's discussion of

the monitoring of person-to-person business telephone calls is also

informative, as the Legislature ultimately concluded that such monitoring of

person-to-person calls was permissible, at least for telephone companies and

banks, if done in the ordinary course of business.[30] In allowing such monitoring even of

person-to-person calls, the Legislature took into account practical business

realities as well as privacy concerns.

In sum, the legislative history is focused

on the secret interception of person-to-person conversations and messaging,

particularly private ones. The

electronic surveillance devices, and the "frightening" future of such

devices, with which the Legislature was concerned were covert recording devices

that could be used to "bug" one's home or business or tap one's

telephone line to listen in on such conversations. The Legislature also recognized that ordinary

business realities needed to be considered, allowing some monitoring of even

private person-to-person conversations.

While the legislative history thus evinces a focus on addressing the

privacy threats posed by evolving surveillance methods, it does not provide a

basis for concluding that the Legislature intended that the term

"communication" would itself over time extend beyond person-to-person

communications, such as to encompass a human's interactions with a

website. The legislative history

therefore provides no sound basis for concluding that the tracking of

human-website interactions for website analytics and digital advertising

purposes, via commonly employed technologies, is a "communication"

under the wiretap act.

d.

Case law. Our case law has never

extended the meaning of "communication" beyond person-to-person

interactions. Rather, our cases have

always involved the interception of person-to-person conversations and

messages. See, e.g., Commonwealth v.

Morris, 492 Mass. 498 , 501 (2023) (defendant's interview with police recorded);

Rainey, 491 Mass. at 633 (video and audio of victim's report to police officer

recorded by body-worn camera); Curtatone v. Barstool Sports, Inc., 487 Mass.

655 , 657-658 (2021) (telephone conversation recorded by blogger); Moody, 466

Mass. at 198 (text messages intercepted); Tavares, 459 Mass. at 294 (informant

recorded conversations with defendant using concealed recording device). None involved a person browsing or otherwise

interacting with a public website. Most

of the cases involved the interception of private interpersonal conversations,

which we have emphasized is the core statutory concern. See Rivera, 445 Mass. at 127 n.10. Indeed, a crucial fact in Rainey and Morris,

two cases in which we found no statutory violation, was that the recording at

issue "was not being used as an investigative tool to secretly eavesdrop

on an otherwise private conversation" (emphasis added). Morris, supra at 506, quoting Rainey, supra

at 643-644.

Moreover, we have previously rejected broad

interpretations of the word "communication" that expand the scope of

the wiretap act well beyond the secret recordings of private conversations the

Legislature intended to prevent.[31] See

Commonwealth v. Gordon, 422 Mass. 816, 832-833 (1996) (rejecting "literal"

reading of act "as making unlawful the audiotaping of booking procedures

without the knowledge of the persons being booked, and as subjecting the

responsible police officers to severe penalties therefor" in absence of

more specific evidence of Legislature's intent to do so). See also Morris, 492 Mass. at 506 (recording

of defendant's voluntary statements to police after receiving Miranda warnings

did not violate wiretap act absent indication Legislature intended such

result); Rainey, 491 Mass. at 643-644 (rejecting application of wiretap act to

body-worn camera recording by police officer of victim's statement even while

acknowledging wiretap act "could be construed literally as the defendant

suggests"). These cases are

inconsistent with Vita's characterization of a legislative intent to provide

broad protections for all website activities, even where they do not involve

person-to-person conversations or messaging.

The cases Vita relies upon do not resolve

the wiretap act's ambiguity in this regard.

In Moody, 466 Mass. at 198 , we held that the wiretap act applied to text

messages and calls sent and received with cell phones.[32] It is difficult to extrapolate much from

Moody's holding that cell phone text messages and calls are "wire communications"

under the act because those forms of communication are clearly person-to-person

conversations and messaging; the case just involved updated technology to make

such calls and send such messages.

The cases cited by Vita and the dissent

interpreting the Federal wiretap act, Title III of the Omnibus Crime Control

and Safe Streets Act of 1968, Pub. L. No. 90–351, 82 Stat. 211 (1968) (Title

III), do not resolve the ambiguity presented by our State's statute. These cases do not engage in depth, if at

all, with the meaning of "communication." See, e.g., In re Facebook, Inc. Internet

Tracking Litigation, 956 F.3d 589, 607 (9th Cir. 2020), cert. denied sub nom.

Facebook, Inc. v. Davis, 141 S. Ct. 1684 (2021) (characterizing "GET

requests," in which website transmits user's URL information to

third-party website, as communication without analyzing meaning of

communication). Further, Title III was

amended by the Electronic Communications Privacy Act of 1986, Pub. L. No.

99–508, 100 Stat. 1848 (1986), to cover "electronic communication,"

defined as "any transfer of signs, signals, writing, images, sounds, data,

or intelligence of any nature transmitted in whole or in part by a wire, radio,

electromagnetic, photoelectronic or photooptical system." 18 U.S.C. § 2510 (12). That amendment was drafted almost twenty

years after our wiretap act, during at least the dawn of the personal computer

era. See Chayka, The Birth of the

Personal Computer, The New Yorker (May 18, 2023), https://www.newyorker

.com/culture/infinite-scroll/the-birth-of-the-personal-computer

[https://perma.cc/S6N9-PLFK] (noting that among first "microcomputer

kits," was Altair 8800, which debuted in 1975, followed shortly by first

Apple computer in 1976, and Apple II in 1977, which is considered precursor to

modern personal computers). It is also

no surprise then that cases applying Title III do not struggle over the

definition of "communication," because the broad definition of

"electronic communication" would appear to cover many website

browsing activities. However, our

wiretap act was never similarly amended to add a separate definition of

"electronic communication."

Moody, 466 Mass. at 207-208 .[33]

Title III also differs importantly from

our wiretap act in providing a one-party consent exception. See 18 U.S.C. § 2511 (2)(d) ("It

shall not be unlawful . . . for a person . . . to intercept a wire,

oral, or electronic communication, where such person is a party to the communication

or where one of the parties to the communication has given prior consent

. . ."). Thus, the scope

of liability under the Federal law is significantly limited in a way that our

wiretap act, which requires the consent of all parties to a communication, is

not. See G. L. c. 272, § 99 B 4

(permitting interception only by "a person given prior authority by all

parties to such communication").

The Federal law therefore provides no basis for resolving the ambiguity

here.

e. Rule of lenity. After examining the statute's text and

legislative history, and reviewing our own case law, we are left with serious

doubts as to whether browsing and interacting with a public website are a

"wire communication" under the wiretap act. Accordingly, the statute is ambiguous. "Under the rule of lenity, if we find

that the statute is ambiguous or are unable to ascertain the intent of the

Legislature, the defendant is entitled to the benefit of any rational

doubt" (citation and quotation omitted).

Montarvo, 486 Mass. at 542.

While

the instant cases concern civil liability under the wiretap act, the act also

has significant criminal penalties, including up to five years in State prison,

and accordingly, the rule of lenity should be applied. See 3 S. Singer, Statutes and Statutory Construction

§ 59:4 (8th ed. Nov. 2023 update) ("If a law has both criminal and

civil applications, the rule of lenity governs its interpretations in both

settings"). See also Leocal v.

Ashcroft, 543 U.S. 1 , 11 n.8 (2004) ("Because we must interpret the

statute consistently, whether we encounter its application in a criminal or

noncriminal context, the rule of lenity applies").[34]

We

therefore cannot conclude, in "the absence of an express textual provision

or an indication of legislative intent," that browsing and other similar

website interactions of the kind Vita alleges she engaged in on the hospitals'

websites are "wire communication[s]" under the wiretap act. See Anderson v. National Union Fire Ins. Co.

of Pittsburgh PA, 476 Mass. 377, 386 (2017).

Activities such as entering a URL, accessing a specific webpage,

clicking on links, and scrolling through a webpage are clearly not the type of

person-to-person conversation or messaging unambiguously protected by the

act. Similarly, the transmission of data

about a user's web browser configuration and IP address bear little resemblance

to person-to-person conversation.

We

also cannot deem as communications the interception of which might lead to

criminal penalties the act of simply running searches on the websites or

accessing information about doctors published on the websites, as alleged by

Vita. These interactions with a website,

as explained above, differ in material respects from person-to-person

conversations and messaging. The website

user is interacting with the website, not another person, and accessing

publicly available data, not having a personal conversation or sending a

personal message.

In

analyzing whether the interception of this information constitutes a criminal

violation, we must keep in mind that the statute does not distinguish medical

information from other information, or hospital websites from other websites.[35]

Consequently, we must impose a common definition of communication of

information for all websites. For

example, would it be a criminal violation if a user browses a music or sports

website, to inquire about particular songs or athletes, and the music website

or sports website tracks its users, and shares that information with Internet

advertisers without the user's consent?

Under this interpretation, it would appear that thousands of website

owners could potentially face severe criminal and civil penalties for using

tracking tools needed to support an advertising-based business model that is so

common on the Internet. See Amended

Opening Brief for Defendants-Appellants, at 24-25; Brief for National Retail

Federation and Retailers Association of Massachusetts, as Amici Curiae, at 3

("The technologies at issue in this case are found on all manner of

websites . . .").[36]

The

dissent likens the hospitals' websites to a virtual "customer service

representative or healthcare provider, receiving inquiries from patients about,

inter alia, a particular medical condition or specific physicians and, in

exchange, providing the hospitals' response." Post at . The same can of course be said for all other

businesses' websites. The dissent's

interpretations would also appear to apply to automated telephone directories

that ask us to dial particular numbers to access different types of

information. Is each one of these

interactions a wiretap violation subject to criminal penalties, including a

prison sentence of up to five years, if it is monitored? Moreover, unlike a call to a customer service

representative to seek information, there is not another person engaged in a

conversation when a website user searches for or requests information, and the

website provides pre-generated content that is publicly accessible.

We

emphasize that Vita does not allege that her communications with a particular

physician, nurse, or other medical professional were intercepted.[37] If such communications were intercepted,

these would be much different cases.

We

also emphasize that the Legislature has provided other statutory and common-law

causes of action to address allegedly false, misleading, or deceptive activity

on the Internet, including statutory and common-law protections more directly

applicable to misrepresentations or misuse of private medical information. See, e.g., Doe vs. Tenet Healthcare Corp.,

U.S. Dist. Ct., No. 23-12978-PBS (D. Mass. Apr. 23, 2024) (plaintiff stated

claims for negligence, breach of implied contract, unjust enrichment, breach of

fiduciary duty, right to privacy, and G. L. c. 93A violation, where

hospital website allegedly tracked and shared with third parties plaintiff's

website browsing activities). For

example, G. L. c. 214, § 1B, provides a "right against unreasonable,

substantial or serious interference with [an individual's] privacy." Deception or misrepresentation in a privacy

policy may also support a cognizable claim under G. L. c. 93A, and the powerful

remedies that statute provides. See

Connor v. Marriott Int'l, Inc., 103 Mass. App. Ct. 828 , 836 (2024) ("An

act or practice will be found deceptive if, first, there is a representation,

omission, or practice that, second, is likely to mislead consumers acting

reasonably under the circumstances, and third, the representation, omission, or

practice is material" [quotation and citation omitted]). There are also, of course, many laws that

strictly protect patient information.

See, e.g., G. L. c. 111, § 70E (giving every patient or resident of

medical facility right "to confidentiality of all records and

communications to the extent provided by law"); 42 U.S.C.

§ 1320d-6(a) (crime to knowingly obtain or disclose "individually

identifiable health information").

In

sum, the statutory language is ambiguous, and the legislative history is not

helpful regarding whether the alleged interceptions of Vita's uses of the

hospitals' websites are interceptions of "communications" within the

meaning of the wiretap act and thereby potentially subject to both civil and

criminal penalties. Therefore, the rule

of lenity applies, and Vita's claims against the hospitals, which are based on

the wiretap act alone, should be dismissed.

See Commonwealth v. Constantino, 443 Mass. 521, 525 (2005) (where

statute can "plausibly be found to be ambiguous" defendant should

receive "the benefit of the ambiguity" [citation omitted]).

3. Conclusion. For the foregoing reasons, we reverse the

Superior Court orders denying the hospitals' motions to dismiss the complaints.

So ordered.

WENDLANDT,

J. (dissenting). Individuals in the

Commonwealth increasingly conduct their affairs over the Internet, sharing

often sensitive personal information with companies by using company websites

rather than landline telephones. The

defendants New England Baptist Hospital (NEBH) and Beth Israel Deaconess

Medical Center, Inc. (BIDMC) (collectively, hospitals), created their own

online presence to communicate with their patients, encouraging engagement with

this electronic medium -- their websites -- as an alternative to the telephone

for patients to obtain information from and about the hospitals, and for the

hospitals to elicit information from patients related to their specific medical

needs and care.

The

hospitals well understood that their websites were a means to communicate

privately with patients -- an inference that is not only reasonable, but almost

inescapable when one reads the hospitals' representations. Mirroring protocols attendant to face-to-face

interactions between healthcare providers and patients, the hospitals assured

patients that they could use these platforms to share their individualized

medical concerns and inquiries privately and, in turn, to receive the

hospitals' tailored responses. Patients

were invited to visit the hospitals' websites "without identifying"

themselves; for those who "elect[ed] to provide identifiable information,"

the hospitals promised to "make every effort to protect [their]

privacy." Come, they told patients

like the plaintiff Kathleen Vita, use our websites as a virtual space where you

can share your private medical concerns, and start receiving our professional

medical advice, confidentially.

Then,

unbeknownst to their patients, the hospitals aided third parties to record this

healthcare information, allowing the third parties to create detailed portraits

of the patients' medical needs and to monetize this information for

advertisements targeted to those patients.

Rather than candidly disclose this arrangement, the hospitals assured

patients that, on their websites, the patients' identities and privacy would be

maintained. In short, the hospitals

lied.

Words

matter. I agree with the court that the

words of a statute must be read in context, but they must be read. To be sure, the Legislature in the 1960s,

when it passed G. L. c. 272, § 99 (wiretap act or act), may not

have divined how the Internet would revolutionize the way we communicate. But because the Legislature chose particular

words, this understandable shortcoming does not mean, as the court concludes,

that the act is hopelessly ambiguous and unable to protect against the surreptitious

recordings that occurred here.

Pertinent

to our query, the Legislature chose the term "communication" --

specifically, "any communication" -- to define the subject matter of

the act's protections (emphasis added), G. L. c. 272, § 99

B 1; it did not limit protections to the "person-to-person

conversations or messaging" that the court finds were the "core type

of communication" with which the Legislature expressed specific concern,

ante at . In my view,

the words "any communication" leave no room for ambiguity. Where a technological advance (like the

telephone before it) revolutionizes how we communicate -- by selecting dropdown

filters specifying preferences to find and to book an appointment with an

available physician on a website, for example, rather than doing the same by

dialing a keypad and placing a call to the hospital using a telephone –- the

Legislature chose to protect these new ways of exchanging information against

electronic eavesdroppers.

Indeed,

in an apparent attempt to avoid any lingering doubts about the protections it

envisioned, the Legislature made pellucid its intent by choosing specific

words, codifying them in the act's preamble.

In words too clear to support any claimed ambiguity, the Legislature expressly

set forth its finding

"that the

uncontrolled development and unrestricted use of modern electronic surveillance

devices pose grave dangers to the privacy of all citizens of the

commonwealth. Therefore, the secret use

of such devices by private individuals must be prohibited." (Emphases added.)

G. L.

c. 272, § 99 A. The

Legislature had the clairvoyance to choose these particular words to indicate

that it was the tremendous power of electronic surveillance devices -‑ like the

tracking software at issue in the instant cases -- to enhance the ability to

snoop far beyond what could be done by the human ear alone that defined the

scope of the act's protections.

The

court loses sight of this aim, apparently blinded by its determination that "tracking

tools [are] needed to support an advertising-based business model that is so

common on the Internet," ante at , and by the stated

assumption that candidly disclosing this tracking to patients threatens

Facebook's and Google's bottom line, id. at . As a result, it concludes that when a patient

and her physician discuss frequently asked questions regarding the symptoms and

treatment options of a particular disease, either in person or by telephone,

that discussion cannot be "bugged" under the act. But when the hospitals create an electronic

forum to allow that same information to be exchanged over the hospitals'

website, they can implant tracking code to record the discussion secretly and

then sell the information to the highest bidder without recourse in the

act. When a patient telephones the

doctor's office to schedule an appointment, that conversation cannot be

recorded secretly by a modern surveillance device under the act; but when that

same exchange occurs on a website designed to facilitate such scheduling, it

bewilders the court to conclude that the act extends so far. Under the court's construction (or lack

thereof), the act permits the hospitals to market their websites as purportedly

private spaces for dispensing medical information on a confidential basis, and

then, as alleged by Vita, to assist "silent third-part[ies] [to] watch[]

whatever [their patients are] doing."

I disagree.

Of

course, public policy decisions regarding the protections afforded to our

communications over evolving technologies against electronic surveillance by

private parties need to be left to the Legislature; but once those decisions

have been made and set forth in clear language, as the Legislature has done in

the wiretap act, it is our function to enforce them. Because, in words too plain to question, the

Legislature told us that the secret recordings alleged to have occurred here

fall squarely within the threat to privacy it enacted the wiretap act to curb,

and because those same words show that the Legislature intended that such

secret surveillance would not escape the act's reach when it occurs over a

website on the Internet rather than over a telephone or telegraph, I

respectfully dissent.

1. Standard of review. "We review the denial of a motion to

dismiss under Mass. R. Civ. P. 12 (b) (6)[, 365 Mass. 754 (1974),] de

novo." Marsh v. Massachusetts

Coastal R.R., 492 Mass. 641 , 645 (2023), cert. denied, 144 S. Ct. 2519

(2024), quoting Dunn v. Genzyme Corp., 486 Mass. 713 , 717 (2021). "In doing so, we accept 'as true all

well-pleaded facts alleged in the complaint, drawing all reasonable inferences

therefrom in the plaintiff's favor, and determining whether the allegations

plausibly suggest that the plaintiff is entitled to relief.'" Marsh, supra at 645-646, quoting Lanier v.

President & Fellows of Harvard College, 490 Mass. 37 , 43 (2022). See Iannacchino v. Ford Motor Co., 451 Mass.

623, 636 (2008) ("Factual allegations must be enough to raise a right to

relief above the speculative level . . ." [citation omitted]).

Straying

from this standard, the court focuses on certain website features that Vita

"regularly" used, discussing Vita's putative failure to state with

sufficient clarity whether she also was among those healthcare consumers who

took advantage of each of the myriad of options made available by the hospitals

on their websites. Such an application

of what appears to be a heightened pleading standard, or a premature analysis

of whether Vita is an appropriate class representative, is inconsistent with

the liberal rules applicable to Vita's complaints. Cf. Mass. R. Civ. P. 9, 365 Mass. 751 (1974)

(heightened pleading standards applicable to claims of fraud);[1] Mass. R. Civ.

P. 23, as amended, 471 Mass. 1491 (2015) (setting forth rules for class

certification). Drawing all reasonable

inferences in Vita's favor, as we must on a motion to dismiss, her

"regular" use of certain features on the hospitals' websites does not

limit our analysis on a motion to dismiss.

2. Communication. Enacted in 1968 in response to "the

uncontrolled development and unrestricted use of modern electronic surveillance

devices," the wiretap act generally precludes aiding another to record secretly

the "contents" of "any wire or oral communication." G. L. c. 272, § 99 A,

C. A "wire communication" is

defined as "any communication made in whole or in part through the use of

facilities for the transmission of communications by the aid of wire, cable, or

other like connection between the point of origin and the point of

reception" (emphasis added).

G. L. c. 272, § 99 B 1.

The

instant cases present the questions whether the electronic exchanges of

information between Vita and the hospitals by means of the hospitals' websites

constituted "communication[s]" protected against surreptitious

monitoring as "wire communication[s]" by the wiretap act, and, if so,

whether Vita's complaints allege that the "contents"[2] of those

communications were intercepted in violation of the act.

a. Plain meaning. The word "communication" is not

defined by the act. In the absence of an

express statutory definition of the term, "[w]e derive the word['s] usual

and accepted meanings from sources presumably known to the statute's enactors,

such as [its] use in other legal contexts and dictionary

definitions." Curtatone v. Barstool

Sports, Inc., 487 Mass. 655 , 658 (2021), quoting Commonwealth v. Matta, 483

Mass. 357 , 372 (2019). See Matter of the

Estate of Mason, 493 Mass. 148 , 151 (2023), quoting Metcalf v. BSC Group, Inc.,

492 Mass. 676 , 681 (2023) ("In construing a statute, we begin with its

plain language"); Garcia v. Steele, 492 Mass. 322 , 326 (2023), quoting

Sandifer v. United States Steel Corp., 571 U.S. 220, 227 (2014) ("words

will be interpreted as taking their ordinary, contemporary, common

meaning"). It is for this reason

that we turn to dictionaries as the first and primary source for the

construction of words that the Legislature used but left undefined.[3] See Millis Public Sch. v. M.P., 478 Mass.

767, 775 (2018), quoting Commonwealth v. Samuel S., 476 Mass. 497, 501 (2017)

("We look initially 'to dictionary definitions as a guide to a term's

plain or ordinary meaning'").

i. Dictionary definitions. The definition of the term "communication"

is the "exchange of information, knowledge, or ideas, by means of speech,

writing, mechanical or electronic media, etc." Oxford English Dictionary Online. See Black's Law Dictionary 350 (12th ed.

2024) (defining communication as "[t]he interchange of messages or ideas

by speech, writing, gestures, or conduct; the process of bringing an idea to

another's perception"); Merriam-Webster Online Dictionary, https://www

.merriam-webster.com/?dictionary/communication

[https://perma.cc

/7VX3-KSG7]

("a process by which information is exchanged between individuals through

a common system of symbols, signs, or behavior"); American Heritage

Dictionary of the English Language 269 (1970) ("The exchange of thoughts,

messages, or the like, as by speech, signals, or writing"); Random House

Dictionary of the English Language 298 (1967) ("the imparting or

interchange of thoughts, opinions, or information by speech, writing, or

signs").

Considering

these definitions, I agree with the court that the plain meaning of

"communication" thus includes messages and conversations[4] between

people, including by means of e-mail, text message, chat, and instant

message. Ante at

. However, I conclude

that the term also encompasses the "exchange" of medical

"information" and "knowledge" that occurred between Vita

and the hospitals "by means of" the hospitals' websites on the

Internet, an "electronic media."[5]

See Oxford English Dictionary Online.

This plain meaning derives directly from dictionary definitions.

While

the court misapprehends the hospitals' websites as repositories for

"published," "pre-generated" medical data, the hospitals

know better. As Vita asserts, they

created the websites as confidential dynamic forums on which they communicated

"interactive[ly]" with patients about the patients'

"personal" medical needs. The

hospitals' websites were "designed for communications with healthcare

consumers," Vita contends.

It

is important, then, to clarify the precise allegations that the court has labeled

sweepingly as "web browsing."

Vita alleges that by means of the hospitals' websites, for example,

patients asked questions about physicians who met the patients' gender

preferences, geographic limitations, and desired areas of specialization

relevant to the patients' unique healthcare needs, and the hospitals answered

by identifying available doctors to meet these specified requirements. Employing the websites, patients inquired

about the hospitals' ability to provide specific treatments and procedures

tailored to the particular maladies with which patients were afflicted; and

they received the hospitals' responses.

On these websites, patients completed forms and dispatched requests to

the hospitals to book appointments with physicians specializing in the

patients' illnesses or to reserve a spot in the urgent care line, just as they

might by e-mail or by telephone.

The

"private healthcare information" exchanged with the hospitals using

their websites, Vita alleges, included "individual's medical conditions,

doctors they might be seeing, medical searches the individual performs on the

websites, and personal medical information the user enters into forms on the

websites." Inconvenient as these

factual allegations may be to the court's reframed narrative as to the nature

of the information exchanged between patients and the hospitals over the

websites, they cannot be disregarded as "embellish[ments]." Ante at note 14. Instead, because the allegations are ones of

fact, I accept them as true, drawing all reasonable inferences therefrom in

Vita's favor, as we must at this early stage in the pleadings. Recasting these factual allegations as

"web browsing" does not alter their nature;[6] they involve exchanges

of information over an electronic media.

As such, they fall within the plain meaning of

"communication."

Confirming

the dictionary definitions, courts generally describe exchanges of information

on the Internet between website owners and website users as

"communications," applying that word's plain and ordinary meaning.[7] While not dispositive, their use of the word

"communication" to refer to these web-based exchanges of information

and the absence of any confusion as to its scope bolsters the conclusion that

the exchange of medical information alleged by Vita falls within the plain

meaning of the term.

ii. Context.

Our analysis does not end with dictionaries; words must be read in the

context of the "statutory scheme as a whole." Six Bros., Inc. v. Brookline, 493 Mass. 616 ,

622 (2024), quoting Plymouth Retirement Bd. v. Contributory Retirement Appeal

Bd., 483 Mass. 600 , 605 (2019).

A. "Any communication." Significantly, the act defines the phrase

"wire communication" to encompass "any communication" so

long as it is transmitted, at least in part, by aid of a wire, cable, or

similar connection (emphasis added).

G. L. c. 272, § 99 B 1. The use of the word "any" to modify

the word "communication" evinces the Legislature's intent to provide

sweeping protection for communications "of whatever kind."[8]

Department of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 131 (2002)

("[T]he word 'any' has an expansive meaning, that is, one or some

indiscriminately of whatever kind" [quotation and citation omitted]). See Commonwealth v. Moody, 466 Mass. 196, 208

(2013) (wiretap act "define[s] 'wire communication' broadly").

This,

in turn, should clarify the court's present bewilderment. The word "any" indicates the

legislative intent not to limit the act's protections to direct "person-to-person"

communications, to "personal" communications, to "private"

communications, to "substantive" "particularized"

communications or to the "core type" of communications available when

the act was passed. Ante at & note 8. In this manner, the Legislature demonstrated

its intent to capture new communications technologies that employ wire, cable,

or other like connections even if those technologies altered the manner by

which we communicate.

Dismissing

this obvious statutory context and rich resource for determining legislative

intent, the court instead places great weight on a subsection of the search

warrant provision of the act, which uses the terms "wire and oral

communications" interchangeably with "conversations," to claim

puzzlement whether "communications" are limited to direct

person-to-person conversations.

Specifically, to obtain a search warrant authorizing the interception of

a wire or oral communication, the subsection requires that the warrant

application include "[a] statement that the oral or wire communications

sought are material to a particularly described investigation or prosecution

and that such conversations are not legally privileged" (emphasis

added). G. L. c. 272,

§ 99 F 2 e. In this

subtle manner, the court concludes, the Legislature might have intended to

narrow the breadth of oral and wire communications, previously and expressly

defined expansively to include, respectively, speech and "any

communication" through the requisite medium, to conversations or messages

between people such as by sending or receiving by e-mail, text message, chat,

instant message, or the equivalent.

G. L. c. 272, § 99 B 1.

In

light of the express definition of "wire communication" and the

purpose conveyed in the act's preamble to protect against the threat to privacy

occasioned by modern electronic surveillance devices, discussed in further

detail infra, the court is mistaken. See

Patel v. 7-Eleven, Inc., 489 Mass. 356 , 364 (2022), S.C., 494 Mass. 562 (2024),

quoting Whitman v. American Trucking Ass'ns, 531 U.S. 457, 468 (2001)

("the Legislature 'does not, one might say, hide elephants in

mouseholes'"). Instead, this

singular use of the term "conversations" was intended to incorporate

the breadth of the phrase "oral and wire communications," as

previously discussed.

Similarly,

the court concludes that, because the act uses the words "telephone"

and "telegraph" several times, protected communications might be

limited to direct person-to-person conversations or messages as one might

conduct on a telephone or through a telegraph.

Far from sowing confusion as to the scope of the phrase "any

communication," these references to telephone communications and messages

by telegraph show that "when the Legislature intend[ed]" to limit a

provision of the act to a particular type of communication, "it [knew] how

to say so explicitly" (citation omitted).

Commonwealth v. Rossetti, 489 Mass. 589 , 600 (2022).

Beyond

requiring that the medium of exchange include, at least in part, a wire, cable,

or like connection,[9] no qualifying phrase limits application of the act so as

to exclude an exchange of medical information and knowledge occurring between a

patient and a hospital by means of the hospital's website.[10] See Plymouth Retirement Bd., 483 Mass. at 605

(we "look to the statutory scheme as a whole" to derive Legislature's

intent [citation omitted]). Such an

exchange of information falls within "any communication."

Even

if recourse to the legislative history were proper,[11] it is telling that the

Legislature chose to protect "any communication" and not just the

private conversations or messages discussed in the legislative record;[12] this

choice to protect "any communication" must inform our

construction. "We do not read into

the statute a provision which the Legislature did not see fit to put there, nor

add words that the Legislature had an option to, but chose not to

include." Commonwealth v. Dones,

492 Mass. 291 , 297 (2023), quoting Commonwealth v. Williams, 481 Mass. 799,

807-808 (2019).

Accordingly,

while the Legislature was concerned principally with privacy, we have concluded

that the act's protections were not limited to situations where there existed a

reasonable expectation of privacy in the oral or wire communications. Commonwealth v. Hyde, 434 Mass. 594, 601

(2001), quoting Commonwealth v. Jackson, 370 Mass. 502, 506 (1976) ("[W]e

would render meaningless the Legislature's careful choice of words if we were

to interpret 'secretly' as encompassing only those situations where an

individual has a reasonable expectation of privacy"). The same principles counsel rejection of any

proposed limit of "communications" to direct person-to-person

conversations or, as the court suggests, ante at , to

conversations involving no "pre-generated" content on the part of one

of the parties to the communication.[13]

See Dones, 492 Mass. at 297, quoting Williams, 481 Mass. at 807-808 .

B. Preamble.

Additional context informing the construction of the word

"communication" comes from the act's preamble, on which we have

placed particular import in connection with our construction of the act. See Commonwealth v. Rainey, 491 Mass. 632 ,

642 (2023) ("Where the Legislature has set forth its intent in the form of

a codified preamble, we consider the preamble as part of the whole statute

. . . to the extent that it does not conflict with the more specific

statutory provisions").[14] See

also Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445

Mass. 745, 749 (2006) ("a statute must be interpreted

. . . in connection with the cause of its enactment, the

mischief or imperfection to be remedied and the main object to be

accomplished" [citation omitted]).

The

preamble codifies the Legislature's intent to provide comprehensive protections

to the privacy of individuals against surreptitious surveillance by private

parties. It emphasizes the Legislature's

concern that "the uncontrolled development and unrestricted use of modern

electronic surveillance devices pose grave dangers to the privacy of all

citizens of the commonwealth," and it sets forth the legislative intent

that the "secret use of such devices by private individuals must be

prohibited." G. L.

c. 272, § 99 A. See

Curtatone, 487 Mass. at 657 (act prohibits all secret interceptions subject to

"a few narrow exceptions").

Narrowing the scope of the act's protections against secret

eavesdropping and secret recording to exclude exchanges of information, knowledge,

or ideas that occur between a patient and a hospital by means of the hospital's

website would contravene the Legislature's stated purpose as codified in the

preamble; the legislative purpose to protect against the dangers of electronic

eavesdropping is particularly relevant where, as here, that information

exchange reveals potentially sensitive medical information. The preamble confirms the deliberate breadth

of the language "any communication" regardless of whether the

communication mirrors the manner by which telephone conversations were conducted.

Consistent

with the preamble, the legislative record reveals a concern over conduct

analogous to that which Vita alleges transpired here. The report of a special commission tasked

with studying electronic eavesdropping and wiretapping prior to adoption of the

present act suggests that the Legislature was concerned by the ease with which

"newly developed inventions" permitted individuals to eavesdrop

electronically. Commonwealth v. Ennis,

439 Mass. 64 , 68 n.10 (2003), citing 1967 Senate Doc. No. 1198, at 3. The software-based eavesdropping tool used by

the hospitals is precisely the sort of "modern electronic surveillance

device[]" that the Legislature sought to prohibit. Contrary to the court's assertion, the fact

that the code was deployed on a personal computing device by the hospitals

despite their assurance of confidentiality is not less "frightening"

than placing a bug in a home or a telephone.[15] Ante at . Certainly, the historical review does not

support the court's view that it is unclear whether the kinds of interceptions

at issue here would fall within the ambit of concerns motivating passage of the

act and set forth in its preamble.[16]

C. Person-to-person communications. The court asserts that a communication between

a patient and a hospital using a website is not a communication between

individuals in a "commonsense way," ante at ;

instead, the court declares that it is an interaction "with a

website," which the court describes as "published information"

-- a repository for a large volume of generic medical information, id. at

. But this is not how

the hospitals themselves describe this online forum, and for good reason. The hospitals' websites function as

interactive mechanisms through which the hospitals communicate information

about, inter alia, their services and physicians to their patients and to the

public at large, and the websites function as electronic forums for the

hospitals to elicit information from patients concerning, inter alia,

particular medical needs, to provide patients with responsive information, and

to schedule appointments with specific providers.

The

result is a personalized exchange of information specific to the patient's

healthcare inquiries and needs. Unlike

the court, the hospitals understood that their websites were a means to

communicate privately with patients.

Copying protocols required for face-to-face communications between

healthcare providers and patients, the hospitals assured patients that they

could use the websites to share their individualized medical concerns and

inquiries privately and, in turn, to receive the hospitals' tailored

responses.

As

amici Massachusetts Health and Hospital Association, Inc., and Massachusetts

Medical Society acknowledge:

"The

[I]nternet is often the first place that patients, family members, researchers,

and anyone curious about a particular medical condition or provider turn when

seeking health-related information.

Hospitals and health care providers seek to help individuals by

providing online content designed to be responsive to those needs."

The websites, in

effect, act like the hospitals' customer service representative or healthcare

provider, receiving inquiries from patients about, inter alia, a particular medical

condition or specific physicians and, in exchange, providing the hospitals'

response in this modern medium.[17]

Of

course, a patient is an individual on one end of this virtual call. That individual asks for information

regarding a particular disease or procedure by clicking an available hyperlink

or typing in search terms. She asks to

book an appointment by filling out a form on the website.

On

the other end of the "call," there are also individuals. These are the employees and representatives

of the hospitals, who are knowledgeable about, for example, the diseases or

procedures that were the subject of the patient's inquiry and who are

responsible for creating the answers to patients' frequently asked questions. They are the hospitals' agents who provide

the information necessary to take the unique wishes of the individual patient

and to develop an algorithm to provide the responsive list of qualified

physicians. They are the hospitals' representatives

who can take the patient's appointment request form and book the appointment

with the requested physician or the individuals at the hospitals responsible

for urgent care.[18] The information on

the hospitals' websites does not create itself; it is designed by humans acting

on the hospitals' behalf. Indeed, the

hospitals do not argue to the contrary.

In

short, the hospitals' websites are, by design, the hospitals' "voice"

to the public and to patients on the Internet; to interact with the hospitals

in this forum, patients, inter alia, direct their web browsers to launch the

hospitals' websites, click on hyperlinks related to the information they seek,

type in search terms to garner more information, select filters or enter

searches to identify doctors, or fill out forms to request an appointment or to

reserve a spot in the urgent care line.

Thus, like dialing the hospitals' main telephone number on a telephone

keypad to enter the signals required to call the hospital, talking into the handset,

and then being directed to a customer service representative to find, for

example, the closest physician of a particular gender who specializes in

fertility issues, the website fields that same "call" from Internet

users.[19]

The

court's conclusion that the communications alleged by Vita are "with the

websites" is no more supportable than a conclusion that a communication

conducted by dialing a hospital's telephone number on a keypad is "with a

telephone." Both sets of communications

are with the hospitals, regardless of how the technological advance connects

patients to the hospitals; both are encompassed by the phrase "any

communication."[20]

b. Personal communications. The hospitals posit that Vita's complaints

merely describe the recording of her "movements in digital space,"

not exchanges of information. For its

part, the court concludes that Vita's "browsing activities" were not

"personal." Ante at

. These arguments

misapprehend the crux of Vita's claims.

Her

claims do not center on the tracking of the Cartesian coordinates or pixel

locations on her electronic device's screen where she moved her cursor and

"clicked," or the keyboard strokes she entered as she typed words

into the hospitals' website search engines.

Instead, her claims rest principally on the personal information

exchanged between her and the hospitals.

That

information comprised, inter alia, the particular type of healthcare

information that Vita sought and that the hospitals provided on the webpages to

which she was directed in response to her inquiries; the search terms she typed

into the hospitals' website search bars to garner information regarding her and

her husband's medical conditions, symptoms, and treatment, and the hospitals'

responses to the same; her inquiries as to the hospitals' available physicians

based on gender preferences, geographic limitations and specialization, and the

hospitals' answers listing the physicians that fit her criteria and the types

of maladies in which they specialized; the specific providers with whom she

sought medical services; her intent to pay or view a medical bill; and her

requests to schedule appointments or be seen by an urgent care provider.

Indeed,

the value of the information that the hospitals allegedly assisted the

third-party software providers secretly to record lies presumably in the rich

portrait of Vita garnered from the treasure trove of information Vita and the

hospitals exchanged during her interactions with the hospital websites. Recasting these exchanges as mere "digital

movements," as the hospitals do, or concluding that they involve no

"personal" information, as the court does, ignores the reality of the

information that the hospitals assisted third-party software providers to track

secretly.[21] As described in the

complaint, the hospitals allowed the third-party software providers to be

"silent third-part[ies] watching whatever [Vita was] doing." Assuming arguendo that the act includes an

unstated requirement that the communication secretly recorded is a

"personal" one, Vita's allegations meet it.

c. Prior determination of act's scope. The court asserts that an amendment to the

act is required to capture the interception that occurred here in order for our

State act to mirror the breadth of the Federal wiretap statute, 18 U.S.C.

§§ 2510 et seq. But we previously

have concluded that our State act's protections of "communication[s]"

is coextensive with the Federal counterpart without amendment; we explained

that, even unamended, our act extends to "non-oral electronic

transmissions" covered by the Federal counterpart as "electronic

communications" -- a category of protected communications that Congress

added in connection with the amendments to the Federal act as part of the

Electronic Communications Privacy Act of 1986 (ECPA), Pub. L. No. 99–508, 100

Stat. 1848 (1986).[22] Moody, 466 Mass.

at 208 . See id., quoting Dillon v.

Massachusetts Bay Transp. Auth., 49 Mass. App. Ct. 309, 315 (2000) ("The

fact that there has been no amendment of the Massachusetts [wiretap] statute

comparable to the Congressional action of 1986 does not bar us from reading the

[Massachusetts wiretap statute] so as to preserve it in its intrinsic intended

scope and maintain its viability in the broad run of cases . . .").

Today,

the court reverses course. It states

that our holding in Moody was based on the ground that text messages mirror

person-to-person conversations by telephone or messages by telegraph. Ante at . But this was not the basis for our holding in

Moody. Instead, that decision was

grounded in our conclusion that the State act was as expansive as the amended

Federal counterpart, a necessary element of our analysis of the defendant's

argument that the State act was otherwise preempted by the Federal act. In so holding, we relied on the definition of

wire communication extending to "any communication" as well as the

State act's use of the term "record."

Moody, 466 Mass. at 208-209 . We

did not rely, as the court now states, on whether a human was directly on

either side of a text message. See

generally id. Critical to our decision

that text messages were covered by "wire communication" was our

determination that that term encompassed "non-oral electronic

transmissions" covered by the Federal counterpart. Id. at 208 .

Given

our prior determination in Moody, it is significant that the court concludes,

as have some Federal courts, that under the Federal statute, third-party

interceptions that occur in the course of a user's interactions with a website,

like those alleged in Vita's complaints, are prohibited recordings of protected

communications. See, e.g., In re

Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 596, 608 (9th Cir.

2020), cert. denied sub nom. Facebook, Inc. v. Davis, 141 S. Ct. 1684

(2021) (plaintiffs stated claim under Federal wiretap act where Facebook

installed "plug-in" software that collected uniform resource locator

[URL] information, which "provides significant information regarding the

user's browsing history, including the identity of the individual [I]nternet

user and the web server, as well as the name of the web page and the search

terms that the user used to find it"); In re Pharmatrak, Inc., 329 F.3d 9 ,

18 (1st Cir. 2003) (defendant who collected information on customers through

"cookies"[23] "appropriate[ly]" did not contest

"whether it . . . obtained the contents of an electronic

communication" under Federal wiretap act).[24]

Consistent

with our decision in Moody and the decisions of Federal courts interpreting the

Federal counterpart, the term "communication" includes online

exchanges of medical information between a hospital and its patients by means

of the hospitals' website. As we have

recognized, the Legislature chose to enact a statute that was more protective

than the Federal counterpart and comparable statutes in other States,[25]

rejecting proposals that would narrow protections.[26] See Hyde, 434 Mass. at 599 ("The

commission [charged with restructuring the Commonwealth's wiretap statute]

clearly designed the 1968 [wiretap act] to create a more restrictive electronic

surveillance statute than comparable statutes in other States").

d. Absurdity.

Notably, although the court's decision rests on its determination that

"communication" is an ambiguous term and although the court uses that

determination to justify its application of the rule of lenity, the court

relies on several cases concluding that the act is not ambiguous, but instead

literally reads on certain conduct. Ante

at .

Setting aside this analytical misstep, I agree with the court that, in

the cited cases, we have eschewed the literal construction because doing so

resulted in an absurdity unsupported by the legislative goals of the act. Cf. Commonwealth v. Morris, 492 Mass. 498 ,

505-508 (2023) (act does not require suppression of audiovisual recording of

voluntary statement where defendant knew police were recording his statement in

writing); Rainey, 491 Mass. at 642-644 (no suppression of body-worn camera

recording of witness's statement where witness called police to report assault

by defendant and knew her statement was being recorded in writing);

Commonwealth v. Gordon, 422 Mass. 816, 832-833 (1996) (act did not require

suppression of purely administrative booking video recording where it was not

used as investigative tool).

However,

these cases do not control our analysis here.

Given the Legislature's focus on the threat to personal privacy

occasioned by the use of modern electronic devices to surveil surreptitiously

individuals' communications, see G. L. c. 272, § 99 A, I

disagree with the court's implicit determination that the Legislature would

regard as absurd holding hospitals liable when they misstate how communications

between a patient and her healthcare providers would be used and shared with

third parties.

Consistent

with its plain meaning as well as the context of the statutory framework as a

whole, the meaning of "communication" extends to the exchange of

medical information and knowledge, through speech,[27] writing, mechanical or

electronic media, or equivalent means.

e. Contents.

Significantly, the court confuses the act's protections of the

"contents" of a communication with the "communication"

itself. As discussed supra, the

complaints allege that the hospitals assisted third parties to record detailed

personal information exchanged between the hospitals and their patients. The act prohibits the secret recording of

these communications, but it also protects their "contents," a term

defined as "any information concerning the identity of the parties to [a]

communication or the existence, contents, substance, purport, or meaning of

that communication." G. L.

c. 272, § 99 B 5. Thus, the

"contents" impermissibly recorded included Vita's underlying

communications with the hospitals as well as, inter alia, the existence of the

communications, the URLs of the specific webpages she visited, the titles of

the webpages through which she scrolled, the hyperlinks on which she clicked,

data about her web browser configuration, the unique identifier used to track

individuals across the website, and her Internet protocol address.[28]

The

court states that these latter "activities" do not resemble

person-to-person conversations. Ante at

. Regardless, they are

"information concerning the identity" of Vita and "the

existence" of the communications.

As such, they are protected as "contents" of the underlying

communication. G. L. c. 272,

§ 99 B 5.

3. Interception.

Concluding that Vita did not allege any communication, the court does

reach the question whether an interception occurred. The hospitals contend that Vita's complaints

failed to allege that she did not know that third parties were monitoring and

recording the communications over the hospitals' websites, and that therefore

no interception of her communications occurred.[29] More specifically, the hospitals assert that

Vita had actual knowledge of the recordings because their privacy policies

stated, "We and our Third Party Service Provider collect and save the

default information customarily logged by worldwide web server software."[30]

The

argument ignores the assurances also set forth in the hospitals' privacy

policies that information on user activity "is not shared with other

organizations" and that "we will not share any information we receive

with any outside parties."[31] See

In re Pharmatrak, Inc., 329 F.3d at 21 ("Deficient notice will almost

always defeat a claim of implied consent"). Moreover, Vita alleges that tracking software

was invisible to the average website user and not otherwise apparent to her.[32] These allegations plausibly suggest that Vita

was unaware that the hospitals were assisting others to record the contents of

the information she exchanged with the hospitals over their websites.

The

hospitals also maintain that no interception transpired because "[i]t is

common knowledge in the 2020s that websites cannot follow users' browsing

commands without logging (i.e., 'recording') them[ and] [t]hat is how the

[I]nternet inherently works." Under

the hospital's theory, "every online communication would provide consent

to interception by a third party."

In re Pharmatrak, Inc., 329 F.3d at 21.

To defeat a wiretap act claim, however, the aggrieved party must have

had actual knowledge of the recording.

See Jackson, 370 Mass. at 507 .

While the actual knowledge may be express or implied, constructive

knowledge is insufficient. See id. Cf. In re Pharmatrak, Inc., supra at 19

("Consent may be explicit or implied, but it must be actual consent rather

than constructive consent"); Williams v. Poulos, 11 F.3d 271, 281 (1st

Cir. 1993) ("Implied consent is not . . . constructive

consent"). Here, nothing in the

complaints' allegations, which we must accept as true at this stage in the

proceedings, suggests that Vita had actual knowledge that third parties were

tracking her activities. See Six Bros.,

Inc., 493 Mass. at 618.

The

court's refusal to conclude that Vita has alleged "any communication"

with the hospitals over their websites appears driven in large part by the

potential exposure of other website owners who employ web analytics -- tracking

software that monitors how users interact with a website to improve its

delivery of information. Ante at

. Of course, if those

website owners candidly disclosed such tracking, then the recording would not

be secret and thus would not fall within the scope of the prohibited

interceptions.[33] The act prohibits

secret recordings, not disclosed ones.[34]

Curtatone, 487 Mass. at 658 ("the definition of interception

provided in the act requires that an interception of the type prohibited must

be [1] secretly made and [2] without prior authority by all parties"

[quotation and citation omitted]).

G. L. c. 272, § 99 B 4 (interception occurs

only where hearing or recording is "secret"). Here, however, the hospitals' disclosures are

not forthright;[35] together with Vita's asserted lack of knowledge, the

disclosures do not provide a defense that can be determined at this stage of

the litigation.

4. Ordinary course of business exception. Because the court concludes that no

communications occurred between the hospitals and Vita, it does not reach the

hospitals' contention that the tracking software falls within an exception to

the prohibition on "intercepting device[s]"[36] that applies to

"any telephone or telegraph instrument, equipment, facility, or a

component thereof" that the hospitals used "in the ordinary course of

[their] business." G. L.

c. 272, § 99 B 3.

To

be sure, the act prohibits only interceptions that are conducted through an

"intercepting device."

G. L. c. 272, § 99 B 4. An intercepting device is

"any device

or apparatus which is capable of transmitting, receiving, amplifying, or

recording a wire or oral communication other than . . . any telephone

or telegraph instrument, equipment, facility, or a component thereof,

. . . furnished to a subscriber or user by a communications common

carrier in the ordinary course of its business under its tariff and being used

by the subscriber or user in the ordinary course of its business

. . ." (emphases added).

G. L.

c. 272, § 99 B 3.

Thus, certain telephone or telegraph equipment used in the ordinary

course of business is exempted from the definition of an intercepting

device. The hospitals do not contend

that the tracking software is "telephone or telegraph

equipment." See O'Sullivan v. NYNEX

Corp., 426 Mass. 261, 265 (1997), quoting Commonwealth v. Todisco, 363 Mass.

445, 452 (1973) ("'telephone equipment' does not include eavesdropping

devices external and extraneous to regular telephone devices"). They ask us to construe "telephone and

telegraph instrument" to include the tracking software at issue here. But the Legislature chose to limit expressly the

exception to "any telephone or telegraph instrument." This contrasts sharply with the Legislature's

decision to define "wire communication" expansively to include

technologies beyond telephone and telegraph instruments. Compare G. L. c. 272,

§ 99 B 3, with G. L. c. 272, § 99 B 1

("wire communication" extends to communications over "wire,

cable, or other like connection").

See Commonwealth v. Williamson, 462 Mass. 676, 682 (2012) (Legislature's

choice of different words demonstrates intent for different meanings).

Moreover,

Vita's complaints aver that the hospitals' ordinary course of business is

caring for and treating patients; it does not appear to extend to permitting

third parties to exploit communications between a patient and the hospitals

concerning the patient's medical inquiries, physicians, and medical care. See Crosland v. Horgan, 401 Mass. 271, 275

(1987), quoting Watkins v. L.M. Berry & Co., 704 F.2d 577, 582 (11th Cir.

1983) ("in light of the statutory purpose of protection from invasions of

privacy, neither the concept of legitimate business purpose nor 'ordinary

course of business' can 'be expanded to mean anything that interests a

company'").

5. Conclusion.

In sum, the hospitals created websites to communicate with their

patients, inviting patients to share their personal medical needs and, in turn,

providing the hospitals' responses. The

hospitals assured patients that these exchanges of information would be kept

confidential. Then, unbeknownst to

patients, they implanted tracking code to assist third parties to record the

patients' private medical concerns, padding Facebook's and Google's bottom

lines. The court decides that the

wiretap act provides no recourse despite its prohibition on surreptitious

electronic surveillance by private parties.

Lamentably, the court is right about one thing; the Legislature will

need to correct today's error.

footnotes

[1] Individually

and on behalf of all others similarly situated.

[2] Kathleen Vita

vs. Beth Israel Deaconess Medical Center, Inc.

[3] We

acknowledge the briefs of amici curiae Chamber of Commerce of the United States

of America; Greater Boston Chamber of Commerce and Massachusetts Nonprofit

Network; Doe plaintiffs in other pending civil actions; Massachusetts Health

and Hospital Association, Inc., and Massachusetts Medical Society; National

Retail Federation and Retailers Association of Massachusetts; National Consumer

Law Center, Inc., and Electronic Privacy Information Center, Inc.; New England

Legal Foundation and Associated Industries of Massachusetts; and Pioneer Public

Interest Law Center.

[4] While the

dissent refers broadly to interception of "private healthcare

information," post at , there is

no allegation that information contained within the private patient portals was

accessed or shared.

[5] As described

in the complaint against BIDMC:

"A 'URL' is

another form of an address specifically for websites . . . that a web

browser can translate into an [Internet protocol (IP)] address to load the website. . . . Numerous URLs also point to specific pages on

that website; often, a URL will contain information about the particular

webpage itself."

[6] Vita's complaints explain that "[a]n 'IP address' is a unique

combination of . . . numbers . . . that serves as a

particular device's address on the [I]nternet."

[7] This was

allegedly collected only on BIDMC's website, which implemented an optional

feature offered by Google Analytics.

[8] While Vita

alleges that users could book appointments and reserve spots in line to be seen

by an urgent care physician, nothing indicates that users could engage in

substantive written conversations or draft particularized messages to health

care providers using the forms. Nor does

Vita allege that she herself used the form to request appointments.

[9] The software

on NEBH's site also would transmit the name of the user's doctor.

[10] As explained

in the briefing by both parties and the amicus submissions, such tracking is

commonly employed. See Amended Opening

Brief for Defendants-Appellants, at 24-25; Brief for National Retail Federation

and Retailers Association of Massachusetts, as Amici Curiae, at 3 ("The

technologies at issue in this case are found on all manner of websites[] and play

a fundamental role in the modern digital economy . . .").

[11] The

complaints do not allege whether Vita viewed the pop-up messages when she

accessed the webpages or whether she reviewed the privacy policies. The complaints also do not allege how or when

the pop-up messages first appeared to a user navigating the websites.

[12] A domain

name, as defined in the privacy policies, is "the unique address assigned

to your Internet service provider's computer that connects to the

Internet."

[13] No class had

been certified by the time these cases reached this court. There has also been no other plaintiff

identified. Based on our decision today,

we need not address whether the prerequisites of class certification, including

whether Vita is an appropriate class representative, may be satisfied

here. See Mass. R. Civ. P. 23, as

amended, 471 Mass. 1491 (2015).

[14] The dissent

claims we apply "a heightened pleading standard, or a premature analysis

of whether Vita is an appropriate class representative." Post at . We do not.

As we note infra, we need not and do not decide whether Vita is an appropriate

class representative, although we are cognizant that she is the only class

representative identified and her personal claims are quite limited. Although we do not ignore Vita's allegations

as to what users in general did on the websites, we do not, as the dissent

does, embellish those allegations or her own.

See, e.g., notes 4, 8, supra; notes 21, 22, infra. As no class has been certified and Vita may

not be an appropriate class representative, we also make clear, where we can,

what she alleges she experienced and what unknown other members of a putative

class may allege. If anyone is straining

pleading standards, it is the dissent.

[15] The act

defines an "aggrieved person" as "any individual who was a party

to an intercepted wire or oral communication . . . or who would

otherwise have standing to complain that his personal or property interest or

privacy was invaded in the course of an interception." G. L. c. 272,

§ 99 B 6.

[16] As discussed

supra, the complaints outline various other claims presented on the behalf of

currently unnamed members of the purported class. Because there are no other named plaintiffs

in these cases, Vita's individual standing is particularly important. Cf. Gammella v. P.F. Chang's China Bistro,

Inc., 482 Mass. 1, 20 (2019) (recognizing that whether plaintiff's claim was

moot was "particularly important . . . because no other named plaintiff

[had] yet been identified"). As we

conclude that Vita has standing regarding her claims, however, we need not

decide whether she would independently have standing to pursue other claims on

behalf of the class. Contrast Weld v.

Glaxo Wellcome Inc., 434 Mass. 81, 84 (2001) (class representative lacked

standing where he had suffered no individual injury).

[17] The same

punishments apply to anyone who "attempts to commit an interception, or

procures any other person to commit an interception or to attempt to commit an

interception." G. L. c. 272,

§ 99 C 1.

[18] The dissent

emphasizes the word "any" that accompanies the definition of

"wire communication," asserting that the use of "any" to

modify "communication" evinces a clear legislative intent to

"provide sweeping protection for communications of whatever kind"

(quotation and citation omitted). Post

at .

See G. L. c. 272, § 99 B 1. The

problem with this analysis, as explained supra, is that the term "wire

communication" does not itself define the meaning of

"communication," but rather the means of communication. We need to look to a source beyond the

definition of "wire communication" to understand what

"communication" means. Indeed,

the dissent does this by turning to dictionaries for its interpretation of

"communication." We address

the problems with the dissent's dictionary analysis infra.

[19] According to

the dissent, these references to "telephone" and

"telegraph" are just examples of the Legislature explicitly limiting

a provision of the act to a particular type of communication. The act requires that warrant applications

include a statement "[t]hat the oral or wire communications of the

particularly described person . . . will occur . . . over particularly

described telephone or telegraph lines" (emphasis added). G. L. c. 272, § 99 F 2 c. Similarly, a warrant must include "[a]

particular description of the person and the place, premises or telephone or

telegraph line upon which the interception may be conducted" (emphasis

added). G. L. c. 272, § 99 I

3. It is not clear why the Legislature

would want to limit the warrant requirements to telegraph or telephone lines as

opposed to other types of wired communications.

[20] A

conversation is an "oral exchange of sentiments, observations, opinions,

or ideas," and includes a similar exchange conducted by, for example,

e-mail. Merriam-Webster Online

Dictionary, https://www.merriam-webster.com/?dictionary/conversation

[https://perma.cc/EL4B-75K2].

[21] The dissent

claims we rely on Vita's allegations that she communicated with the hospitals'

websites but ignore places in the complaints where she characterizes the

communications as between users and the hospitals. But there is nothing in the allegations to

suggest that anything other than interactions with the website are at issue

here. When the complaints reference

communications with the hospitals, they are only referencing communications

with the hospitals' websites. As

discussed supra, there is a significant difference between communicating with a

person and communicating with a website, a difference the dissent fails to

grasp. According to the dissent, there

is no meaningful difference between speaking to a doctor about one's specific

illness and searching for, and then reading, pre-generated content on a webpage

discussing an illness in general. There

is a difference in kind and not degree between the two as we explain throughout

the opinion. One is interpersonal, the

other is not.

[22] The dissent

says we "misapprehend[] the hospitals' websites as repositories for

'published,' 'pre-generated' medical data," and contends that the websites

were in fact "confidential dynamic forums on which [the hospitals]

communicated 'interactive[ly]' with patients about the patients' 'personal'

medical needs." Post at

. We disagree with the

dissent's characterization. Nothing in

the complaints indicates that the hospitals provided specific, tailored

responses in real time to users' inquiries.

As alleged here, the content was no more dynamic than that contained on

any other website that provides written content that is periodically

updated. Nor do the complaints describe

hospital websites that are more interactive than most institutional webpages

that provide general information. Users

had the ability to navigate and find information relevant to themselves and to

schedule appointments, but nothing in the complaints indicates that, at least

where third-party tracking was active on the websites, users could engage in

one-on-one interactions with specific medical providers.

[23] The dissent

claims we disregard the dictionary definitions of

"communication." We do

not. "Dictionaries can be useful in

interpreting statutes, but judges . . . must take care not to 'overread' what

dictionaries tell us" (citation omitted).

Suesz v. Med-1 Solutions, LLC, 757 F.3d 636, 643-644 (7th Cir.), cert.

denied, 574 U.S. 1047 (2014).

"Although . . . dictionaries can be helpful -- especially when dealing

with a specialized term, or a term of art, or a word's usage at the time of the

law's enactment -- more often than not, the interpretive challenge comes from

the ambiguity of the word as situated in a sentence. In that situation, dictionaries can hardly be

definitive." R.A. Katzmann, Judging

Statutes 43 (2014). Here, the dictionary

definitions are too varied and "too vague to provide meaningful

guidance." Suesz, supra at

643 . In everyday language and in other

legal contexts, "communication" can ordinarily imply an interpersonal

exchange, such as a conversation or exchange of messages. See, e.g., Clair v. Clair, 464 Mass. 205, 213

(2013) (determining whether testimony and documents sought were privileged

attorney-client communications); Phelan v. May Dep't Stores Co., 443 Mass. 52,

56 (2004) ("communication" for defamation purposes defined as

"conduct that brings an idea to the perception of others" [citation

omitted]); Emerson, 8 Ways You Can Improve Your Communication Skills, Harvard

Division of Continuing Education (Aug. 30, 2021),

https://professional.dce.harvard.edu/blog/8-ways-you-can-improve-your-communication-skills

[https://perma.cc

/P4RD-WN75]

("A leader's ability to communicate clearly and effectively with

employees, within teams, and across the organization is one of the foundations

of a successful business").

[24] See, e.g.,

American Heritage Dictionary of the English Language 269 (1970) ("The

exchange of thoughts, messages, or the like, as by speech, signals, or

writing"); Random House Dictionary of the English Language 298 (1967)

("the imparting or interchange of thoughts opinions, or information by

speech, writing, or signs").

[25] We also note

that most of the preamble is directed at the dangers presented by organized

crime and the need for its secret surveillance, albeit under tight

controls. See G. L. c. 272,

§ 99 A ("[O]rganized crime constitute[s] a grave danger to the

public welfare and safety. . . . [L]aw

enforcement officials must be permitted to use modern methods of electronic

surveillance, under strict judicial supervision, when investigating these

organized criminal activities").

26 We note that oral communication

expressly excludes speech "transmitted over the public air waves by radio

or other similar device." G. L. c.

272, § 99 B 2.

[28] The dissent

accuses us of confusing the act's protection of the "contents" of a

communication with the "communication" itself. Post at

. The wiretap act defines

"contents" as "any information concerning the identity of the

parties to such communication or the existence, contents, substance, purport,

or meaning of that communication."

G. L. c. 272, § 99 B 5. The

problem is that "contents," while referencing

"communication," does not define the term. Moreover, the definition refers to

"parties to such communication."

This only reinforces the ambiguity of the definition of communication,

as "parties" seems to suggest the existence of at least two

individuals (i.e., two parties to a telephone call or two parties to a text

message thread). See Merriam-Webster

Online Dictionary, https://www

.merriam-webster.com/?dictionary/party

[https://perma.cc/2K4N-XPPE] ("party" can be defined as "a

particular individual" or "a person or group participating in an

action or affair"). Accordingly,

where the meaning of "communication" is ambiguous, we cannot say with

any more confidence that the information described by the dissent (e.g., URLs,

titles of webpages, hyperlinks, etc.) is "contents" of a communication

also protected by the wiretap act.

[29] As noted

earlier, speech "transmitted over the public air waves by radio or other

similar device" was expressly excluded.

G. L. c. 272, § 99 B 2.

[30] The act

allows "an operator of a switchboard, or an officer, employee, or agent of

any communication common carrier, whose facilities are used in the transmission

of a wire communication, to intercept, disclose, or use that communication in

the normal course of his employment."

G. L. c. 272, § 99 D 1 a. It also allows "a financial institution

to record telephone communications with its corporate or institutional trading

partners in the ordinary course of its business." G. L. c. 272, § 99 D 1 f.

[31] The dissent

declares that we commit an "analytical misstep" in looking to cases

where we interpreted the wiretap act and did not find it ambiguous, but

nonetheless rejected certain literal readings.

Post at . We

are unaware of any rule, nor does the dissent cite one, requiring that -- in determining

whether a statute is ambiguous -- we only rely on cases where that same statute

was declared ambiguous. Based on our

citation of those same cases, the dissent further asserts that we must

determine that "the Legislature would regard as absurd" the

application of the wiretap act to the alleged website activities. Id. at . The dissent is incorrect. Where the statute's definition of

communication clearly applies, we still consider whether its application is

absurd. See Commonwealth v. Mansur, 484

Mass. 172 , 175 (2020) (statute's language must be given its ordinary meaning if

language is "clear and unambiguous"; however, "we do not adhere

blindly to a literal reading of a statute if doing so would yield an 'absurd'

or 'illogical' result" [citations omitted]). In the instant cases, however, as we have

explained throughout this opinion, the term "communication" does not

clearly apply here. Rather, it is ambiguous.

[32] The dissent

claims that we misread Moody, ignoring its conclusion that the "State act

was as expansive as the amended Federal counterpart." Post at . According to the dissent, Moody stands for

the proposition that our wiretap act covers all forms of communication covered

by the Federal wiretap act, Title III of the Omnibus Crime Control and Safe

Streets Act of 1968, Pub. L. No. 90–351, 82 Stat. 211 (1968) (Title III), as

amended, including all forms of electronic communication as that term is

defined by Title III. Post at . The dissent is incorrect. Moody is, of course, a more nuanced

decision. There, the court concluded

only that the wiretap act, on "the several particulars challenged by the

defendants, is not repugnant to the provisions of the Federal act and is accordingly

not preempted" (emphasis added; citation omitted). Moody, 466 Mass. at 205 . More particularly, the court concluded the

"existing language of the Massachusetts wiretap statute is broad enough to

protect all forms of cellular telephone calls that utilize wire, cable, or

other like connections, even if the use of such connections is only in

switching stations." Id. at

207 . In this respect, the court found

"the Massachusetts wiretap statute is as protective as the amended Federal

wiretap statute." Id. To reach this conclusion, the court did not

need to determine whether our State wiretap act protected every type of

communication protected by the amended Title III, because the limited question

before the court was whether cell phone calls and text messages were protected.

[33] Vita also

cites Federal court opinions, most of them unpublished, interpreting other

States' wiretap statutes and concluding that the statute applies to

communications between a website and a user.

To the extent some of the cases involve similar fact patterns, these

cases interpret different State laws; also, those State laws have been amended

far more recently than our wiretap act.

See, e.g., Cal. Penal Code § 632.01 , inserted by Cal. Stat. 2016,

c. 855 (A.B. 1671) (crime to intentionally disclose or distribute,

"in any forum, including . . . Internet Web sites

. . . the contents of a confidential communication with a health care

provider" that is illegally intercepted); 18 Pa. Cons. Stat. § 5704 ,

as amended through 2017 Pa. Legis. Serv. Act 2017-22 (S.B. 560)

("telephone calls" and "conversations" in wiretap act

replaced with "oral communication, electronic communication, or wire

communication").

[34] Indeed, we

have explicitly applied the rule of lenity to civil statutes with no criminal

component if the statutory provision was penal in nature. See Anderson v. National Union Fire Ins. Co.

of Pittsburgh PA, 476 Mass. 377, 386 (2017) (applying rule of lenity to treble

damages provision of civil statute, G. L. c. 93A); Libby v. New York, N.H.

& H.R.R., 273 Mass. 522, 525-526 (1930) (statute providing civil damages

for injuries caused by railroad collisions "must be construed strictly and

not extended by equity, or by the probable or supposed intention of the

[L]egislature as derived from doubtful words" [quotation and citation

omitted]).

[35] The dissent

attempts to narrow the application of Vita's interpretation to the collection

of medical information. But it fails to

explain why such browsing is communication when one browses a public medical

website, as opposed to browsing any other type of public website. The statute certainly draws no such

distinction. It is not specifically

directed at medical information as opposed to any other information.

[36] The dissent

claims we are motivated in our reasoning by "business

realities." Post at note 33. To be sure, we do not ignore "business

realities," as courts should, of course, take care to consider the

real-world application of a proposed reading of a statute. But the principle guiding our analysis is,

more simply, adherence to the rule of lenity where a criminal statute is

ambiguous. Unlike the dissent, we will

not impose penalties of up to five years in prison on activity that has not

been clearly defined to be criminal.

[37] Vita also

does not allege that her or her husband's private medical records, that is,

medical information prepared by doctors, nurses, or physician assistants for

either of them, were transmitted to third parties without their consent.

footnotes for dissenting

[1] For example,

the court recognizes that the websites were used by a patient to communicate

requests to the hospitals to book appointments and to reserve a spot in the

urgent care line, but then places significance on Vita's purported failure to

allege whether "users could engage in substantive written conversations or

draft particularized messages to health care providers using the

forms." Ante at note 8. It is not clear why or whether that

additional allegation would affect the court's analysis. Certainly, nothing in the act itself requires

a communication to be particularly "substantive" or

"particularized" to warrant protection. As discussed infra, the act protects

"any communication."

G. L. c. 272, § 99 B 1.

[2] As discussed

in detail infra, the act makes clear that the "contents" of a

communication include more than the communication itself; it defines

"contents" as "any information concerning the identity of the

parties to [a] communication or the existence, contents, substance, purport, or

meaning of that communication."

G. L. c. 272, § 99 B 5.

[3] Rather than

start its analysis with this trusted resource, the court takes an unusual

approach, searching the act for "examples" of communications and then

declaring that in light of this sampling, the dictionary definitions are

"too varied and too vague" to be useful (quotation and citation

omitted). Ante at note 23. I disagree.

The definitions provided by the dictionaries are neither too varied nor

too vague; central to each is the exchange of information and knowledge. And, as explained infra, the samples relied

on by the court comprise a subset of the broader definition of

"communication."

[4] The term

"conversation" means an "oral exchange of sentiments, observations,

opinions, or ideas," and includes a similar exchange conducted by, for

example, e-mail. Merriam-Webster Online

Dictionary, https://www.merriam-webster.com/?dictionary/conversation

[https://perma.cc/EL4B-75K2]. Thus, a

"conversation" is encompassed by the term "communication";

however, the term "communication" is broader. Cf. Commonwealth v. Zezima, 365 Mass. 238,

241 (1974) ("The adoption by the Legislature of the word 'communication'

[and not 'conversation'] . . . manifests an intention to include

more than conversations . . .").

[5]

"[N]early everything that makes the [I]nternet function is

wired. . . . Individual

devices like laptops and smartphones are capable of communicating with a

network (Wi-Fi or cellular network), but the routers that they connect to are

almost always connected by wires."

Alliance for Innovation and Infrastructure, The Infrastructure of the

Physical Internet (June 27, 2023), https://www.aii.org/the-infrastructure-of-the-physical-internet

[https://perma.cc/S6DL-EU2K]. See In re

DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497, 501 (S.D.N.Y. 2001)

("The Internet is the physical infrastructure of the online world: the servers, computers, fiber-optic cables

and routers through which data is shared online"). See also Commonwealth v. Moody, 466 Mass.

196, 198, 207 (2013) (wiretap act applies to wireless transmissions between

cellular telephones because transmissions "utilize wire, cable, or other

like connections, even if the use of such connections is only in switching

stations").

[6] After

reframing Vita's alleged exchanges of information over the hospitals' websites

as "web browsing," the court casts aside dictionaries because they do

not provide a "ready answer" to the question whether web browsing is

"with the website" or "with the website's owner." This sleight of hand does render dictionaries

unhelpful in our analysis of the meaning of the term "communication,"

especially where the term is preceded by the word "any," as discussed

infra. In any event, the information on

the website did not come from the ether; the information was supplied by

individuals –‑ representatives of the hospitals responsible for the websites'

content. Accordingly, the communications

alleged to have occurred here were between the hospitals and their patients by

means of the hospitals' websites. See

discussion infra.

[7] See, e.g.,

Popa v. Harriet Carter Gifts, Inc., 52 F.4th 121, 124 (3d Cir. 2022) (referring

to consumer's interactions with website as "communications"); In re

Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 596, 607-608 (9th Cir.

2020), cert. denied sub nom. Facebook, Inc. v. Davis, 141 S. Ct. 1684

(2021) (referring to "GET requests" between user's web browser and

webpage servers, which include uniform resource locator [URL] of webpage and

sometimes information about website from which user is launching new site, as

"communications"); In re Google Inc. Cookie Placement Consumer

Privacy Litig., 806 F.3d 125, 130 (3d Cir. 2015), cert, denied sub nom. Gourley

v. Google, Inc., 580 U.S. 814 (2016) (referring to Internet exchanges captured

by "cookies," which enable transfer of information from web browser

to web server, as "communications"); In re Zynga Privacy Litig., 750

F.3d 1098, 1101 (9th Cir. 2014) (describing how "communications occur

between [Internet] 'clients' and 'servers'" in context of Facebook cookies

transferring information); Brown v. Google LLC, 525 F. Supp. 3d 1049 , 1068

(N.D. Cal. 2021) (referring to Internet exchanges captured by cookies as

"communications"); In re DoubleClick Inc. Privacy Litig., 154 F.

Supp. 2d at 504 (describing information exchanges between user and websites

captured by cookies as "communication[s]"). See also note 23, infra (defining

"cookie").

[8] Curiously,

the court dismisses dictionaries as unhelpful because "the interpretive

challenge comes from the ambiguity of the word as situated in [the]

sentence." Ante at note 23. Yet, the court refuses to consider the word

"communication" in context.

Specifically, the use of the word in the sentence defining "wire

communication."

[9] The

Legislature expressly stated its understanding that technological advances

would change the ways we communicate. In

describing the scope of wire communications, it chose the words "made in

whole or in part through . . . wire, cable, or other like connection

between the point of origin and the point of reception" to capture

communications conducted over future technologies, like the Internet (emphasis

added). G. L. c. 272,

§ 99 B 1. Faithful to that

forward-looking mandate, we previously have concluded that the wiretap act applied

to technologies that did not exist at the time of its enactment. See Moody, 466 Mass. at 208-209 (concluding

"wire communication" includes cellular telephone calls, which only

transfer through wire, cable, or like connection briefly at switching stations,

as well as text messages, which are nonoral electronic communications).

[10] Indeed, both

telegraph and Internet systems operate through transmission of electrical

signals, leading some commentators to view telegraphs as a sort of precursor to

the Internet. See generally T. Standage,

The Victorian Internet: The Remarkable

Story of the Telegraph and the Nineteenth Century's On-line Pioneers

(1998).

[11] Of course,

"where[, as here,] the statute is clear and unambiguous, our inquiry into

the Legislature's intent need go no further than the statute's plain and

ordinary meaning" (citation omitted).

Commonwealth v. Mcneil, 492 Mass. 336 , 337 (2023). AIDS Support Group of Cape Cod, Inc. v.

Barnstable, 477 Mass. 296, 301 (2017) ("Where the language of the statute

is plain and unambiguous, . . . legislative history is not ordinarily

a proper source of construction" [quotation and citation omitted]).

[12] Contrary to

the hospitals' argument, our opinion in Commonwealth v. Rivera, 445 Mass. 119

(2005), is not to the contrary.

Expressly passing over the question whether the owner who made the

recording violated the act, we concluded that suppression was not required

because the State had no part in ordering or encouraging the recording. Id. at 123 ("we need not determine the

predicate issue . . . whether the audiotape was made in violation of

the wiretap statute"). We also

mused in dicta that "the defendant cannot reasonably claim that his

recorded threats and obscenities were a 'conversation'" that the act would

protect. Id. at 127 n.10. However, we did not (and could not) thereby

limit the scope of the act's protections to polite conversations.

[13] Of course,

there are differences between in-person communications, telephonic

communications, e-mail communications, text messages, and communications with

the hospitals conducted over a website.

Each technology alters the way we communicate. In some respects, the technological advances

are helpful, making it possible for us to communicate over distances previously

unthinkable or to place a message during nonbusiness hours seeking an

appointment with a healthcare provider for our ailing loved one. In other ways, the technological advances can

detract from the qualities of direct in-person interactions. However, the Legislature was clear that these

differences in how we communicate would not leave the information exchange

unprotected. The act protects

"any" communications, even the ones that lack the personalized touch

of a bygone era, and even the ones that are less substantive than others.

[14] Notably,

"we have turned repeatedly to the [wiretap] statute's preamble to inform

our analysis." Rainey, 491 Mass. at

642, citing Curtatone, 487 Mass. at 659-660, Commonwealth v. Tavares, 459 Mass.

289 , 295 & n.5 (2011), Commonwealth v. Ennis, 439 Mass. 64, 68 (2003),

Commonwealth v. Gordon, 422 Mass. 816, 833 (1996), and Commonwealth v. Thorpe,

384 Mass. 271, 279 (1981), cert. denied, 454 U.S. 1147 (1982).

[15] I disagree

with the court's conclusion that the Legislature, which was frightened by the

capacity of cigarette pack-sized "parasite bugs" and by "room

bugs" that could pick up a whisper from twenty feet away, ante at

, would be less abhorred by "hidden code" secretly "injected"

into patients' home computers that enables observers to watch from anywhere

patients' healthcare communications on hospital websites, as Vita alleges.

[16] The court

declares the "historic analogies" to "website analytics" to

be tracking of mail order purchasing decisions, compiling of customer lists,

and sharing the same. Ante at

. But such manual

endeavors are not "modern electronic surveillance devices" with the

attendant capacity of such electronic devices to surpass what can be done

manually (emphasis added). G. L. c. 272,

§ 99 A. It thus is not

surprising that the Legislature did not discuss such basic manual business

activities. By contrast, the tracking

software -- indisputably a form of modern electronic surveillance device --

alleged by Vita in her complaints falls within the Legislature's area of

concern.

Notably, when it enacted the statute, the

Legislature was alarmed by the revelation that a telephone company was secretly

monitoring and recording telephone calls between customers. Ennis, 439 Mass. at 69 n.10, citing 1967

Senate Doc. No. 1198, at 14. Secret

monitoring of communications exchanged through a company's website is, in

material respects, a modern-day equivalent of a telephone company secretly

monitoring and recording customer's use of its landlines -- a practice that

particularly concerned the Legislature.

See Ennis, supra, citing 1968 Senate Doc. No. 1132, at 6-7, and 1967

Senate Doc. No. 1198, at 14 (partial motivation for wiretap act was revelation

that telephone company was recording customers' calls secretly).

[17] One of the

Internet's most significant contributions has been to make possible

instantaneous communications across vast expanses. As the United States Supreme Court described:

"Anyone with

access to the Internet may take advantage of a wide variety of communication

and information retrieval methods. These

methods are constantly evolving and difficult to categorize precisely.

. . . All of these methods can

be used to transmit text; most can transmit sound, pictures, and moving video

images. Taken together, these tools

constitute a unique medium -- known to its users as 'cyberspace' -- located in

no particular geographical location but available to anyone, anywhere in the

world, with access to the Internet."

Reno v. American

Civil Liberties Union, 521 U.S. 844, 851 (1997).

[18] As described

supra, the fact that the hospitals' responses are, in some sense, pre-generated

is not dispositive; nothing in the act limits its protection of "any

communication" to spontaneous or extemporaneous communications. Cf. Armata v. Target Corp., 480 Mass. 14,

19-20 (2018) (automatically dialed and delivered prerecorded telephone message

constituted "communication" under debt collection regulation).

[19] Accord

Revitch vs. New Moosejaw, LLC, U.S. Dist. Ct., No. 18-cv-06827-VC (N.D. Cal.

Oct. 23, 2019) ("request[ing] information . . . by clicking on items of

interest" and receiving that information in response is akin to

"call[ing] to inquire about a store's products," and "[t]his

series of requests and responses -- whether online or over the phone -- is

communication").

[20] Deviating

from our standard of review on a motion to dismiss, which requires us to draw

all reasonable inferences in the plaintiff's favor, see supra, the court

appears to rely on Vita's characterization of her "intercepted

communications" as being between Vita and "each hospital's

website." Ante at

. If Vita's

allegations are to be controlling, then, at the least on a motion to dismiss,

we must consider her numerous allegations describing the use of the website

features as communications with the hospitals.

See, e.g., Vita vs. Beth Israel Deaconess Med. Ctr., Inc., Mass. Super.

Ct., No. 2384CV00480, Complaint ¶ 1 (Suffolk County Feb. 24, 2023) (BIDMC

Complaint) ("Plaintiff brings this action to remedy the secret

interception of the contents of [I]nternet communications between healthcare

consumers and the defendant, [BIDMC]. . . .

The Plaintiff's and Class Members' wire communications with BIDMC were

secretly and contemporaneously intercepted, recorded, and transmitted to these

third parties without their knowledge or consent whenever they visited any page

of the BIDMC Website"); BIDMC Complaint ¶ 7 ("this case concerns

communications between healthcare consumers and healthcare providers");

BIDMC Complaint ¶ 9 ("BIDMC aided interceptions by . . . third

parties of healthcare consumers' communications with BIDMC through the BIDMC

Website"); BIDMC Complaint ¶ 18 ("Users of healthcare-related

websites such as the BIDMC Website have a legitimate expectation and

understanding that their communications with BIDMC through the website will be

private. They also have a legitimate

expectation that healthcare providers such as BIDMC will not share with third

parties their communications with BIDMC without their consent"); BIDMC

Complaint ¶ 20 ("Healthcare consumers would not anticipate or expect that

their communications with healthcare providers, including BIDMC, which reveal

information about that individual's personal health conditions, will be

intercepted and secretly shared . . ."); BIDMC Complaint ¶ 25

("The interceptions of website users' communications with BIDMC were,

therefore, truly secret . . ."); BIDMC Complaint ¶ 26

("Plaintiff describes in this complaint various tracking technologies

implemented on the BIDMC Website that cause the secret interception, recording,

and transmission of the contents of Class Members' [I]nternet communications

with BIDMC. The next section

. . . provides a brief overview of the third parties that intercept

and record the contents of Class Members' [I]nternet communications with BIDMC

. . ."); BIDMC Complaint ¶ 38 ("BIDMC injects hidden

code into the BIDMC Website that permits third parties to contemporaneously

intercept healthcare consumers' communications with

BIDMC. . . . This

includes, for example, associating the content of the user's communications

with BIDMC with the website user's Facebook profile"); BIDMC Complaint ¶ 39

("These tracking technologies transmit to [third parties]

contemporaneously with the website communications between Class Members and

BIDMC, the contents of those communications and identifying information about

the Class Members"); BIDMC Complaint ¶ 50 ("A third party

. . . can then add the content of the user's communications with

BIDMC to its collection of information it already has about the individual,

which it can then use for advertising purposes"); BIDMC Complaint ¶ 52 ("The

tracking technologies described in this complaint intercept and transmit to

third parties the contents of communications between healthcare consumers and

BIDMC contemporaneously with those communications"); BIDMC Complaint ¶ 54

("These tracking technologies are each substantially similar to the

now-removed [third party] code, both in their surreptitious deployment on the

website and their contemporaneous interception of website users' communications

with BIDMC"); BIDMC Complaint ¶ 63 ("After [a third party] associates

the website user's communications with BIDMC with the identity of particular

individuals known to [the third party], [the third party] can use that

information for its own commercial purposes . . ."); BIDMC

Complaint ¶ 66 ("Below is an example of the contents of the communication

between the website user and BIDMC, which the hidden [code] would intercept and

transmit to [a third party]"); BIDMC Complaint ¶ 68 ("With that

information, [a third party] could then use the contents of communications

between the website user and BIDMC to serve personalized advertising to the

website user in the future") (Emphases added.). The above is exemplary; other allegations are

the same and repeated with regard to NEBH.

[21] The tracking

software captured information about Vita's and her husband's medical conditions

and care. As an example, Vita posited

that if she navigated to the hospitals' webpages concerning pregnancy

treatments, queried the websites with pregnancy-related search terms, requested

an appointment with the obstetrics department, entered the payment portal, or

accessed the patient portal, the data collected by the software could be

employed to discern that Vita or someone she knows was pregnant and was

receiving care from physicians affiliated with the hospitals. In combination with other information known

about Vita, the third-party software providers thereafter could monetize this

information to sell and deliver targeted digital advertisements regarding

pregnancy or prenatal care to Vita.

[22] The ECPA

narrowed the Federal wiretap act's definition of "wire communication"

from one that essentially was identical to our State wiretap act's definition

of "wire communication" by substituting the phrase "any aural

transfer" for "any communication," thereby limiting wire

communications under the Federal statute to those involving the human

voice. Pub. L. No. 99–508,

§ 101(a)(1)(B), 100 Stat. at 1848, codified, as amended, at 18 U.S.C.

§ 2510 (1). See Moody, 466 Mass. at

202-203 . At the same time, however, the

ECPA defined a new category called "electronic communications," which

includes "any transfer of signs, signals, writing, images, sounds, data,

or intelligence of any nature transmitted in whole or in part by a wire, radio,

electromagnetic, photoelectronic or photooptical system" but not oral or

wire communications as redefined in the amended Federal act. Pub. L. No. 99–508, § 101(a)(6)(B), 100

Stat. at 1848–1849, codified, as amended, at 18 U.S.C. § 2510 (12). See Moody, supra at 202 . The State act's definition of "wire

communication" has not changed and has not been narrowed to mirror the

Federal statute; it continues to cover "any communication" by the

requisite means.

[23] A cookie is

a data file received on a computer at the time that the computer's user visits

a webpage and is used to record and maintain information about the user's

online activity. See U.S. Auto Parts

Network, Inc. v. Commissioner of Revenue, 491 Mass. 122 , 125 & nn.6-8 (2022).

[24] Amici

Greater Boston Chamber of Commerce and Massachusetts Nonprofit Network contend

that Vita's website interactions are not protected, citing Federal cases

concluding that "contents" of a communication were not intercepted

where recorded URLs did not "convey substantive information" but

instead conveyed "mere dialing, routing, addressing, or signaling

information" (quotation and citation omitted). In re Nickelodeon Consumer Privacy Litig.,

827 F.3d 262, 275 (3d Cir. 2016), cert. denied sub nom. C.A.F. v. Viacom Inc.,

580 U.S. 1048 (2017). The Federal

statute, however, defines "contents" of a communication as only

"any information concerning the substance, purport, or meaning of that

communication." 18 U.S.C.

§ 2510 (8). By contrast, our State

counterpart defines "contents" to include "any information

concerning the identity of the parties to such communication or the existence,

contents, substance, purport, or meaning of that communication" (emphases

added). G. L. c. 272,

§ 99 B 5.

[25] Courts

interpreting other States' wiretap acts also have concluded that their State

act applies to communications transmitted over websites on the Internet. See, e.g., Popa, 52 F.4th at 133

(Pennsylvania's wiretap statute, which models Federal wiretap statute,

protected consumer's browsing activities on website); Javier vs. Assurance IQ,

LLC, U.S. Ct. App., No. 21-16351 (9th Cir. May 31, 2022) ("Though written

in terms of wiretapping, [§ 631(a) of California's statute, which, like the

Commonwealth's act, does not separately define electronic communications,]

applies to Internet communications"); Smith vs. Google, LLC, U.S. Dist.

Ct., No. 23-cv-03527 (N.D. Cal. June 3, 2024) (denying motion to dismiss claim

under California wiretap statute where third-party tracking tools recorded

information exchanges through website).

See also McCulley vs. Banner Health, U.S. Dist. Ct., 23-cv-00985 (D.

Ariz. May 10, 2024) (sustaining claim for violation of California wiretap

statute where healthcare provider enabled third parties to record search terms

plaintiff used to research "specific doctors and medical

treatments").

[26] For example,

unlike many other States' wiretap statutes, the act generally requires consent

of all parties to the communication. See

G. L. c. 272, § 99 (prohibiting secret recording without prior

authority by all parties to communication); Hyde, 434 Mass. at 599 (act

requires consent of all parties). For

this reason, the hospitals are wrong to suggest that they may secretly record

patient communications and then share those communications with third parties;

such recording by the hospitals would be permissible only with the patient's

express or implied knowledge.

[27] Amici New

England Legal Foundation and Associated Industries of Massachusetts suggest we

construe "communication" to mean "speech," which is how the

act defines "oral communication."

G. L. c. 272, § 99 B 2. If the Legislature had intended

"communication" also to mean "speech," it would have used

the same words. Moreover, if the Legislature

intended "wire communication" to be limited to speech over a wire,

cable, or other like connection, as the amici suggest, it would have said

so. Its choice instead to use the phrase

"any communication" in the definition of "wire

communication" evinces the Legislature's intent that "wire

communication" be more expansive than "speech" over a wire,

cable, or other like connection. See,

e.g., Commonwealth v. Williamson, 462 Mass. 676, 682 (2012), quoting Ginther v.

Commissioner of Ins., 427 Mass. 319, 324 (1998) ("Where the Legislature

used different language in different paragraphs of the same statute, it

intended different meanings").

[28] Given the

defined term "contents" in the act, the court is wrong to focus on

whether Vita alleges "her husband's medical records or the contents of his

patient portal were in any way collected, intercepted, and transferred to third

parties." Ante at

.

"Contents," under the act, is clearly not so limited.

[29] An

interception occurs only where a party "secretly hear[s], secretly

record[s], or aid[s] another to secretly hear or secretly record the contents

of any wire or oral communication through the use of any intercepting device by

any person other than a person given prior authority by all parties to such

communication." G. L.

c. 272, § 99 B 4.

[30] Notably, the

hospitals disregard that the disclosures further provided that the logged

information will only be used "to prevent security breaches and to ensure

the integrity of the data on our servers" (emphasis added). Here, Vita alleges that her interactions with

the hospitals were used for advertisement purposes, beyond the scope of the

disclosed use. See In re Pharmatrak,

Inc., 329 F.3d at 19, quoting Gilday v. DuBois, 124 F.3d 277, 297 (1st Cir.

1997) ("A party may consent to the interception of only part of a

communication or to the interception of only a subset of its communications.

. . . 'Thus, a reviewing court must inquire into the dimensions of the

consent and then ascertain whether the interception exceeded those

boundaries'" [quotation omitted]).

[31] The

hospitals' reliance on our decisions in Rainey, Morris, and Curtatone is

misplaced. In Rainey and Morris, each

aggrieved party was on notice that the other party to the respective

communication was recording the statement in some manner. Morris, 492 Mass. at 505-507. Rainey, 491 Mass. at 643-644. Similarly, in Curtatone, the aggrieved party

knew that the person with whom he was speaking was recording the

conversation. Curtatone, 487 Mass. at

655-658. Here, Vita alleges that she

lacked notice that third parties were intercepting her communications at all.

[32] Moreover, as

alleged in the complaints, even if a user used her browser settings to disable

cookies, the tracking software would continue to record the user's

communications with the hospitals.

[33] Taking what

appears to be judicial notice of "thousands" of websites that

apparently do not disclose candidly their practice of sharing their tracking of

website users' activities for advertisement purposes, the court states that it

is up to the Legislature to analyze the business realities. Ante at . But the Legislature has demonstrated that when

so-called business realities require a narrow exception to the act, it has

provided the same. See, e.g., St. 1998,

c. 163, §§ 7, 8 (amending act to exempt financial institutions' recording of

telephone calls "with corporate or institutional trading partners").

[34] The court

also appears to be concerned about the potential criminal liability under the

act, especially for companies unaware of tracking on their websites. Ante at . Of course, the act criminalizes only

"willful[]" recordings.

G. L. c. 272, § 99 C 1.

[35] Nor can the

hospitals credibly claim surprise. At

the least, it would appear that the now two decades old decision in In re

Pharmatrak, Inc., 329 F.3d at 18, might have provided notice. Indeed, the mishandling of private healthcare

information has garnered the attention of the Federal Trade Commission (FTC),

including some enforcement action prior to the filing of Vita's

complaints. See, e.g., Matter of Flo Health,

Inc., FTC File No. 1923133 (FTC enforcement action brought in January 2021

involving disclosure of health data to third-party analytics providers).

[36] The argument

of amicus Chamber of Commerce of the United States of America that the tracking

software does not comprise an "intercepting device" ignores that the

software runs on physical infrastructure, which is a "device or apparatus

which is capable of transmitting, receiving, amplifying, or recording a wire or

oral communication." G. L.

c. 272, § 99 B 3.