High Court hands Internet ‘cookie monster’ to Legislature

“If the Legislature intends to impose criminal and civil penalties for wiretapping to prohibit the tracking of a person’s viewing and interactions with published information on websites, it should say so explicitly,” Justice Scott Kafker wrote for the majority.

The hospitals were sued by a Revere woman, Kathleen Vita, who alleged that she used the websites to find certain doctors and medical information on behalf of her husband and only belatedly learned that the sites used AdTech software to allow data sharing. with a group that included Meta Pixel and Google Analytics.

There were no allegations that personal information, such as that stored on patient portals, was shared or compromised.

In its decision against Vita, the court distinguished between the type of personal communications covered by the wiretapping statute and the website searches that were the subject of the lawsuit (one of many such state and federal lawsuits). throughout the country).

“Ultimately, we cannot conclude that the wiretap law clearly prohibits and, indeed, criminalizes the interception of Internet activity, since there appears to be a difference in nature, not degree, between interactions on a website , available for public access, and private conversations in your home or on the phone,” Kafker wrote. “Viewing and accessing information posted on a website is significantly different from talking or sending a message to another person.”

But Kafker also made it clear on behalf of the court that just because it isn’t illegal doesn’t make it right.

“Make no mistake, the alleged behavior of hospitals here is a matter of grave concern,” he added. “And we in no way downplay the serious privacy threat posed by the proliferation of third-party tracking of individual website browsing activity for advertising purposes. However, these concerns should be addressed to the Legislature.”

This was one of the issues on which the majority and the lone dissenting judge, Justice Delilah Wendlandt, found common ground. While Wendlandt characterized third-party tracking as “covert surveillance,” she also noted, “Unfortunately, the court is right about one thing; The Legislature will have to correct today’s mistake.”

“That’s why the Legislature needs to go back and reexamine any number of laws and determine how technology has impacted those laws that are already on the books,” said Sen. Michael Moore, chairman of the Joint Committee on Advanced Information Technology, Internet and Cybersecurity. “And now there are no restrictions on data collection.”

Millbury Democrat and House Speaker Tricia Farley-Bouvier of Pittsfield announced the agreement on a wide range of issues. Data Privacy Law in May. It has since been held in the House Budget Committee.

“This will protect consumers from the commercialization of their data,” Moore said. “This will cover exactly what hospitals do.”

Representative Beth Israel Lahey Health, the parent company of both hospitals, said after the SJC decision: “We remain committed to appropriately protecting the privacy of all our patients. If the Legislature decides to provide clearer and more consistent rules of conduct for all organizations in this area to follow in the future, we would welcome such action.”

Of course, the problem is much broader than hospitals, and even Moore admits his still-stalled legislation may not stop people from simply clicking the “I accept” button. However, “data minimization” standards may be required, restricting data owners to collecting and processing only “reasonably necessary” data proportionate to their purpose. It would also require “clear consent” and that those disclaimers be presented in a “clear and conspicuous manner,” Moore said.

It would also prohibit the commercial sale of geolocation information and targeted advertising to minors and provide additional protections for certain types of highly sensitive personal data, such as race, immigration status or crime victim status.

In short, he does what the court says needs to be done, plus then some. It won’t take much more effort from the Legislature to get this done—if not this session, then certainly next.

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