Massachusetts wiretap act: why web browsing is not a "communication" after Vita

G.L. c. 272, §99(C)(1) punishes any person who "willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication". The penalty is a fine of up to USD 10,000 or imprisonment.

Definitions in §99(B):

• Interception: "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" (B.4).
• Wire communication: "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" (B.1).
• Contents: "any information concerning the identity of the parties to such communication or the existence, contents, substance, purport, or meaning of that communication" (B.5).

The elements are:

• a wire or oral communication;
• secretly heard or recorded;
• through an intercepting device;
• by someone without prior authority from all parties.

The statute does not define "communication" itself. That gap decided Vita.

Section 99(Q) gives "Any aggrieved person" a civil action. That includes a person whose communications were intercepted, disclosed or used, or whose "personal or property interests or privacy were violated by means of an interception". The person may recover:

• "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";
• punitive damages;
• "a reasonable attorney’s fee and other litigation disbursements reasonably incurred".
• Limitations period (labelled uncertain). Section 99 states none. We have not confirmed which Massachusetts limitations period courts apply.
• Standing. In federal court, Article III applies; see standing.

Before Vita, plaintiffs alleged that the Meta Pixel and Google Analytics on hospital websites intercepted patients' browsing, including pages about doctors, conditions and appointments, and sent it to the platforms with identifiers. The broad definition of "contents" (identity of the parties) and the all-party rule made the claims attractive. After Vita, the remaining theories involve person-to-person exchanges:

• website chat with staff;
• messages through a patient portal;
• email.

What Vita leaves in place. The court listed what the act does cover: "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" (slip op. 3). It noted that Vita did "not allege that private patient records or messages to nurses, doctors, or other healthcare providers were intercepted." So a chat widget staffed by people, or portal messaging, remains within the statute’s reach.

Where Massachusetts claims went. Health-tracking plaintiffs in Massachusetts federal court now plead the federal Wiretap Act instead. Goulart v. Cape Cod Healthcare, on the crime-tort exception, is on appeal in the First Circuit; see Federal Wiretap Act.

Status, 17 October 2026: the current text of §99 on the Legislature’s site shows no amendment responding to Vita (G.L. c. 272, §99). Vita binds Massachusetts courts on the meaning of "communication" for website browsing. Washington’s Supreme Court reached a similar result under its own statute on 8 October 2026; see Washington.

Browsing analytics on Massachusetts sites are outside the wiretap act after Vita. Other laws may still reach them: the federal Wiretap Act, consumer protection law and contract. Recording what people say to people is still squarely covered, with all-party consent.

• Treat live chat, support messaging and portal messages as communications that need everyone’s prior authority before a third party records them.
• Check whether your chat vendor keeps transcripts, uses them to train models, or shares them.
• Show recording notice in the chat window before the first message.

How Inth catches this

• Code audit: flags a pull request that adds a chat or messaging vendor, or a session replay script that would capture typed messages, and traces message text to the vendor.
• Website audit: records requests from chat and messaging pages to vendor domains, with the page, time, region and consent state.
• Consent banner: functional tools such as Intercom or Crisp can be held until the visitor grants the category. Massachusetts is not in the default opt-in regions, so this needs a policy you create.
• Evidence: consent records with the choice, country and policy.

Inth cannot tell whether a chat is answered by a person or a bot, which is now the distinction that matters in Massachusetts and Washington.

• Vita v. New England Baptist Hospital
• In re BPS Direct (session replay MDL that pleaded the Massachusetts act among other state wiretap laws; decided on standing)
• Related: Baker v. Seattle Children’s Hospital

• Mass. Gen. Laws ch. 272, §99 (General Court of Massachusetts)
• Vita v. New England Baptist Hospital, SJC-13542, slip opinion (24 October 2024), law-firm copy. The official mass.gov copy could not be retrieved.

Source review: 17 October 2026. This page summarises the statute and the cited decision at its procedural stage. It is not legal advice. Inth wrote the technical checks; they cannot decide which laws apply or prove compliance.