After last year’s landmark ruling holding that the Massachusetts Wiretap Act does not prohibit businesses’ use of pixels to capture website browsing data, Massachusetts plaintiffs have shifted their focus to the federal Wiretap Act. The problem: unlike the Massachusetts Wiretap Act, its federal counterpart is a “one-party consent” law, meaning that a business’s consent to the use of the pixels is enough to preclude liability. Last month, a federal court held that a “crime-tort exception” to this consent exemption does not apply when website browsing data is collected for “commercial purposes or advantages.” Goulart v. Cape Cod Healthcare, Inc., 2025 WL 1745732 (D. Mass. June 24, 2025).
Plaintiffs Debra Goulart and Michael Garbitt each used Cape Cod Healthcare’s (“CCHC”) website to obtain medical care. According to the Complaint, CCHC used various pixel tools to collect and share information about their website activity, including information about “the type of medical appointment the patient made, the date, and the specific doctor the patient was seeing.” Since CCHC was a party to the plaintiffs’ alleged website communications with CCHC, there was no dispute that the one-party consent exemption facially applied. However, the plaintiffs invoked a “carve-out”: “the crime-tort exception,” under which a party may still be liable when the communication is intercepted “for the purpose of committing any criminal or tortious act.” The Court held that the crime-tort exception did not apply because the plaintiffs failed to plausibly allege that CCHC’s “primary motivation” in disclosing plaintiffs’ information was to commit “a criminal violation or tort.” Although the Court acknowledged that the “facts alleged by plaintiffs support[] the proposition that CCHC used the trackers for purposes of marketing and advertising,” the Court rejected these allegations as insufficient. As the Court explained in dismissing the federal Wiretap Act claim, “commercial purposes or advantages” are “not the stuff of which a crime-tort is made.”