Readers of this blog may recall a recent favorable decision handed down by Massachusetts State’s highest court in which it found that Massachusetts Wiretap Act claims (“MWA”) do not extend to consumer interactions with websites. This decision seemingly dealt a death blow to the viability of future Internet-specific MWA claims. However, a recent lawsuit initially filed in Massachusetts State court (Defendant removed the lawsuit to federal court), demonstrates that the Plaintiffs’ bar remains undeterred as it shifts its focus from state to federal wiretapping claims. Below, we discuss the alleged facts and claims asserted in the subject proceeding.
Health Care Provider Facing Unlawful Wiretap Claims
In McManus v. Tufts Medical Center, Inc., Plaintiff Karen McManus (“Plaintiff”) sued Tufts Medical Center (“Defendant”) on behalf of herself and a putative class of consumers. In her Complaint, Plaintiff alleged that Defendant violated the Electronic Communications Privacy Act, 18 U.S.C. § 2511 (“ECPA”), by secretly intercepting the contents of highly sensitive communications between consumers and Defendant’s website. Initially, Plaintiff filed her Complaint in Massachusetts State court alleging a single MWA claim. Defendant removed the case to federal court, but the case was remanded back to state court because the only cause of action was a MWA claim.
After the decision in Vita v. New England Baptist Hospital, Plaintiff amended her Complaint on December 12, 2025, asserting seven new causes of action, including substituting an ECPA claim in place of a MWA claim. The crux of the Amended Complaint alleges that Defendant violated the ECPA by embedding certain third-party tracking technology (e.g., Google Analytics, Meta Pixel, etc.) in its website for purposes of intercepting: (1) communications between consumers and Defendant; (2) descriptions of services for which consumers sought treatment; (3) requests for information about doctors; and (4) the precise words consumers used in their searches. In turn, Plaintiff alleged that third parties, like Google and Meta, used this information to: (i) place consumers in specific health-related categories based on their past, present, and future health conditions; and (ii) target consumers with advertising aimed at their specific health conditions.
Plaintiff further alleged that the disclosure of this information violated The Health Insurance Portability and Accountability Act (“HIPAA”), which imposes criminal penalties for knowingly disclosing Individually Identifiable Health Information (“IIHI”) to a third-party without consumer consent. Although a party to its own communication cannot be held liable under the ECPA (“Party Exception Rule”), the ECPA provides a carve-out where the “communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.” Because Defendant’s interception and subsequent disclosure of IIHI to third parties allegedly violated HIPAA, Plaintiff asserted that Defendant cannot escape liability under the Party Exception Rule. Defendant intends to file a Motion to Dismiss, which is due February 3, 2025.
If at First You Don’t Succeed, Try Try Again
As evidenced by this lawsuit, it is clear that the Plaintiffs’ bar will continue to find new avenues to advance wiretapping claims. As such, companies should anticipate that illegal wiretapping claims are unlikely to slow down anytime soon, especially in jurisdictions like California, which has robust consumer privacy laws.
If your website uses third-party software to track consumer interactions and you are named in a lawsuit alleging illegal wiretapping claims, it is imperative that you immediately evaluate whether you have viable defenses. Too often, companies rush to settle these claims where several defenses exist to defeat such wiretapping claims. In addition, your company should consider reviewing: (1) its data collection technology; (2) when and how consent to collect and use such consumer data is obtained; and (3) with whom your company shares this information.
The attorneys at Klein Moynihan Turco (“KMT”) are at the forefront in: (1) defending companies against consumer wiretapping claims; and (2) advising clients on how to comply with various wiretapping laws. KMT’s attorneys are readily available to assess your company’s current data collection practices and help protect against future wiretapping claims. If your company is named as a defendant in a wiretapping lawsuit, our first-rate litigation defense team is available to use its experience to zealously defend your company.
If you need assistance with defending against wiretapping claims or updating your privacy practices and procedures, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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