WEBVTT

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<v ->SJC 13542,</v>

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Kathleen Vita versus New England Baptist Hospital, et al.

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(shuffling of desks and papers)

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(shuffling of papers continues)

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(shuffling of papers continues)

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<v ->Counsel, will you help me</v>

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with the pronunciation of your last name?

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<v ->I'd be happy to, Your Honor.</v>

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I've been doing that since first grade with teachers.

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(Chief Justice Budd laughing)

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David Gacioch.

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<v ->[Chief Justice Budd] Great; thank you, Attorney Gacioch.</v>

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<v ->May it please the court, Madam Chief Justice.</v>

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My name is David Gacioch

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with my colleague Annabel Rodriguez.

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I have the honor here

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to represent two leading Boston public charities

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and medical institutions,

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Beth Israel Deaconess Medical Center

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and New England Baptist Hospital.

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But as we've briefed, what is before the court here,

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the stakes stretch far beyond those two institutions.

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Here are just four, quickly, among the many reasons why...

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The plaintiff must demonstrate the four

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among many things the plaintiffs must demonstrate

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in order for the court to sustain the trial court's ruling

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and to rule for the plaintiffs.

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First, that despite its text and legislative history,

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the general court intended this statute

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not just to cover private conversations between individuals,

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but to be broad enough to cover internet browsing in 2024.

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Second, simultaneously that the general court

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intended the "ordinary course of business" exception

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to be narrow and to be stuck

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in 1968 telephone and telegraph technology

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such that that balance would disappear over time.

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Third, that both of these things

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are so clear and so unambiguous

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that the Commonwealth's well-established rule of lenity

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does not have any application here.

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And fourth, that the massive civil liability

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and criminal exposure

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associated with ubiquitous 21st century website technology,

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it would be the natural outcome

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of plaintiff's approach to the Wiretap Act

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is not absurd or unreasonable or unforeseen,

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but instead intended by the general court.

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<v ->Let me ask you about the intercepting device argument</v>

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that's raised in this case.

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How does that reconcile with our Holden and the Moody case

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where we allowed cell phones and text messages

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through digital means, or through the atmosphere,

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to be covered?

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You know, wiretaps used to be tapping of a wire

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with alligator clips and all that.

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And eavesdropping was done by bugs back in the day.

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That's not the day anymore.

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Police and other people intercept things digitally.

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So in Moody, we kind of said that.

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Why is code different than what we said in Moody?

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<v ->So we would argue it's not the code, Justice Gaziano,</v>

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but instead it's the nature of the "supposed communication"

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in air quotes that's being supposedly intercepted.

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In Moody, all the court did was extend

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to the natural direct successors

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to what the general court clearly had in mind in 1968.

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The general court

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clearly had landline phone conversations in mind.

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And Moody said, cell phone conversations

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are just the 2013, at that point, equivalent.

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<v ->What's the device that's used</v>

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to intercept a cell phone call?

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<v ->In this case it could be...</v>
<v ->Moody.</v>

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<v ->In Moody, I think it was a warranted tap</v>

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at the communications carrier level at that point.

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Because there's some wire transmission

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in between the cell phone tower pieces

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of that call that goes through.

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And the court noted there was

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at least some involvement of wires there.

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But I think the broader common sense interpretation

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of Moody is:

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Text messages are the functional equivalent right now

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of what telegrams were in 1968.

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<v Justice Dewar>So sorry, go ahead.</v>

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<v ->I'm sorry, just one more question for me, maybe.</v>

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(Justice Gaziano chuckles)

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In this case, we talk about browsing.

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And I know that the allegations are general.

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Is this all or nothing?

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I mean, if someone goes on the BI website

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and types in a query and wants a response back,

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is that covered?

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<v ->So we would argue it's not</v>

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because it's not an interpersonal conversation

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that's being recorded or being listened to.

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<v ->Where's the interpersonal part of the statute?</v>

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Thank you, I'm sorry.

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<v ->I'd happy to answer that.</v>

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<v ->Could I just follow up</v>

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on Justice Gaziano's original question?

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He asked you about interception device

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and, you know, essentially asking

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why is that standard met here?

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You then immediately pivoted to talking about communication.

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I do not read your brief

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as really making much of an argument

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that there's not an interception device here,

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although some of the amici are arguing that point.

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Are you indeed really focusing your argument

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on the wire communication piece

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and not really contesting

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that there is an interception device?

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<v ->That's partially correct, Justice Dewar.</v>

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I think the one caveat I would add is

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because the "ordinary course of business" exception

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is part of the intercepting device definition,

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we are contesting it in that regard,

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but we're not contesting the hardware/software distinction

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that's being made here

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in terms of just the pure technological advance.

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It's the nature of the communication,

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and the fact that it was done in this case

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quite clearly in the ordinary course of business

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that are the basis of our argument.

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<v ->Why is communication interpersonal?</v>

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I mean, I just don't understand that argument.

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Why does it have to be person to person?

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And where is that in the statutory text?

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<v ->So it's in the statutory text at least once.</v>

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And that's at Section 99 F2e.

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And that's where the general court wrote a statement

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that "the oral or wire communications sought,"

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this is in the case of a warrant application,

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"are material to a particularly described investigation,

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"et cetera," and that quote, "such conversations" end quote,

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are not legally privileged.

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<v ->Well, why can't there be a conversation with a business?</v>

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<v ->Because it's not a conversation.</v>

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This is like looking at a catalog, Justice Gaziano,

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or looking at a pamphlet.

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This is all pre-printed, pre-generated content

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that is on the website

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that just like one would look in the index of a catalog...

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<v ->Aren't those called chats online?</v>

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<v ->Yeah, that's the query I asked about.</v>

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So if there's a question box and you query,

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"I have a problem with my knee joint pain,"

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and someone's gonna come back and answer you,

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isn't that a conversation that's not interpersonal?

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<v ->That might be, but that's not within the scope</v>

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of the plaintiff's allegations here.

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The plaintiff has only alleged that she browsed the website

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to review pre-existing content, not a chat function,

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not something that's generating new content.

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<v ->That's why I asked whether this was all or nothing.</v>

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<v ->[Attorney Gacioch] Yeah.</v>

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<v ->Can I follow up on that?</v>
<v ->No, go ahead.</v>

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<v ->Can I follow up on that?</v>

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I think it's paragraph 10, if I'm not mistaken,

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of the complaint.

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It's either 10 or 11 is the one place

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that I saw in the complaint,

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although I'll definitely follow up

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with the plaintiff on this,

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where there was specific conduct of this plaintiff

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and specific interactions identified.

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And I did not read in that paragraph

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something having to do with a form of interaction

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that's heavily focused on in their brief,

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which is a request on the website for an appointment.

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And we encounter these things all the time.

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It's a form like, "Your name.

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"What's your problem?"

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Like it could be a doctor.

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It could be any kind of business.

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And you write them a little message.

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And it's clearly what they are using instead of email,

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Right?

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Instead of giving you an email address,

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they give you a form and you fill it out

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and you write them a message.

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And I think that I'd be interested to hear your thoughts

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about why that does not fall underneath your definition

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of communication.

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Because you are communicating.

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You are writing a message to a business,

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and you are expecting that they're going to write back

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to you in particular about your issue.

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<v ->So that is probably about as close hypothetically</v>

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as one could get in this context.

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But just as Your Honor pointed out,

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it's not within the scope of what plaintiff alleges

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that she did in this case,

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which is all of her allegations,

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and I agree, they're all in paragraph 10.

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There are no other allegations in her complaint

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about what she claimed to have done.

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In fact, there are more disclaimers

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of what she didn't do in the footnotes of her complaints

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than there are allegations about what she specifically did.

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But all she alleges is that she went,

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sought out and received pre-existing content.

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<v ->So but can you address my hypothetical about,</v>

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putting that to the side

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and understanding your position on that,

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if you have a form where a website user fills out the form

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requesting an appointment,

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would you say that that would be a communication

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within the meaning of your definition of communication?

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<v ->That's close to the line at least.</v>

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That's as close as it gets

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because it's asking for non pre-existing content

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in a communication back.

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I don't think we're there yet

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because of the scope of what this...

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Remember, everything the court finds to be within scope here

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for civil purposes is in scope

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for all of the felony provisions.

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<v ->What's the difference between that and a text message?</v>

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<v ->The difference between that and a text message is</v>

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it's a pre-filled form that's merely asking someone

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to call back.

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<v ->So I ask for information and then I get information back.</v>

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The definition of conversations in Rivera,

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in the footnote in Rivera,

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it sounds like a conversation to me.

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<v ->I very much agree that it's about as close</v>

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as we come here.

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It is right at the line.

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<v ->Age of observations, opinions and ideas.</v>

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<v ->But I do wanna stress that the plaintiff's claims are,</v>

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first, she doesn't allege that she actually did that.

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But second, her claims are much, much broader

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than that limited example.

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That's a handpicked strategic example for briefing purposes.

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Her claims are, defining her proposed class is-

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<v ->No, we get what paragraph 10 says.</v>

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<v ->We've got another plaintiff who goes onto your website</v>

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and says, "I'm looking at all the breast cancer doctors."

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That's not an inquiry?

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I mean, it's revealing thought process.

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Maybe it's not a communication, but it's the beginning.

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It's communicating information

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that obviously is valuable to Beth Israel

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and also these third parties, right?

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<v ->It's going on the website</v>

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to look at pre-existing content that exists there.

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It's like thumbing through a directory

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or a catalog in 1968 of content that already exists.

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If someone's sitting in a hospital waiting room,

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we're flipping through a doctor's directory

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or a "Best Doctor's Boston Magazine" issue,

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and the surveillance camera

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observes that flipping through,

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that wouldn't be a Wiretap Act violation.

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This isn't either.

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<v ->Can I ask you about your telephone/telegraph exemption?</v>

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And you say it's not stuck on telephone and telegraph,

260
00:12:00.870 --> 00:12:03.390
but when you go on in Section D,

261
00:12:03.390 --> 00:12:07.140
there are other exemptions that are specific, right?

262
00:12:07.140 --> 00:12:10.290
There's a switchboard operator, intercom system,

263
00:12:10.290 --> 00:12:15.290
financial trades and transactions.

264
00:12:15.570 --> 00:12:18.420
Why can't we just read the words as they lay

265
00:12:18.420 --> 00:12:20.880
and say it's telephone and telegraph?

266
00:12:20.880 --> 00:12:22.740
<v ->A couple of reasons, Your Honor.</v>

267
00:12:22.740 --> 00:12:26.490
First, because that's not what, for instance,

268
00:12:26.490 --> 00:12:28.680
the appeals court has done in the past.

269
00:12:28.680 --> 00:12:32.370
Slightly different words of that same exception,

270
00:12:32.370 --> 00:12:34.770
but in Dylan versus MBTA, for example,

271
00:12:34.770 --> 00:12:37.710
the appeals court's whole rationale,

272
00:12:37.710 --> 00:12:39.810
same kind of claim as here, right?

273
00:12:39.810 --> 00:12:44.400
Plaintiff's seeking damages on behalf of a putative class

274
00:12:44.400 --> 00:12:48.150
claiming that: Look, the statute's literal language says X.

275
00:12:48.150 --> 00:12:49.410
It's gotta be, in this case,

276
00:12:49.410 --> 00:12:52.170
equipment from a communications common carrier.

277
00:12:52.170 --> 00:12:54.600
<v ->And they got it from somebody else?</v>

278
00:12:54.600 --> 00:12:58.560
<v ->And in Dylan, they got it undisputedly from a third party.</v>

279
00:12:58.560 --> 00:13:00.337
And what the appeals court said was,

280
00:13:00.337 --> 00:13:02.527
"We see that that's the language,

281
00:13:02.527 --> 00:13:04.680
"but that would be an absurd result."

282
00:13:04.680 --> 00:13:06.090
<v ->But that was specifically absurd</v>

283
00:13:06.090 --> 00:13:09.540
because of the breakup of the monopoly of the Bells, right?

284
00:13:09.540 --> 00:13:13.980
Like basically, they read common carrier

285
00:13:13.980 --> 00:13:18.570
a little more broadly to include not just the monopoly.

286
00:13:18.570 --> 00:13:20.340
<v Justice Gaziano>It's still the telephone.</v>

287
00:13:20.340 --> 00:13:21.750
<v ->I mean, I think we read it differently.</v>

288
00:13:21.750 --> 00:13:24.150
It was a specifically designed device

289
00:13:24.150 --> 00:13:25.590
that stood alone from telephones,

290
00:13:25.590 --> 00:13:28.290
was not required to be part of a telephone system.

291
00:13:28.290 --> 00:13:30.600
It was only for recording calls.

292
00:13:30.600 --> 00:13:31.820
In O'Sullivan v Nynex,

293
00:13:31.820 --> 00:13:33.900
in this court's decision a couple of years earlier,

294
00:13:33.900 --> 00:13:36.780
it was a software program

295
00:13:36.780 --> 00:13:40.110
that recorded sales and marketing calls by Nynex

296
00:13:40.110 --> 00:13:42.930
to its subscribers trying to sell additional services.

297
00:13:42.930 --> 00:13:46.050
That was also the ordinary course of business.

298
00:13:46.050 --> 00:13:47.970
<v ->How is this...</v>
<v ->Go ahead.</v>

299
00:13:47.970 --> 00:13:50.393
<v ->How is this the ordinary course of business, though?</v>

300
00:13:52.701 --> 00:13:56.580
Selling information to an ad agency or Google

301
00:13:56.580 --> 00:14:00.660
about what potential patients are interested in

302
00:14:00.660 --> 00:14:04.203
on your website, how is that part of a hospital's business?

303
00:14:05.116 --> 00:14:06.900
Ordinary course of business?

304
00:14:06.900 --> 00:14:08.430
It doesn't seem like ordinary to me.

305
00:14:08.430 --> 00:14:09.690
It seems like they're getting

306
00:14:09.690 --> 00:14:13.770
into a for-profit kind of operation.

307
00:14:13.770 --> 00:14:15.630
<v ->So I think we would respectfully disagree</v>

308
00:14:15.630 --> 00:14:17.010
with the characterization

309
00:14:17.010 --> 00:14:19.530
of selling this information to Google or Facebook.

310
00:14:19.530 --> 00:14:23.550
<v ->You're giving this to Google so that they know</v>

311
00:14:23.550 --> 00:14:26.253
how to market people.

312
00:14:27.844 --> 00:14:29.790
That's not part of the hospital's job.

313
00:14:29.790 --> 00:14:32.400
I take it the hospital's getting paid

314
00:14:32.400 --> 00:14:36.393
to give this data to the advertising people at Google.

315
00:14:39.090 --> 00:14:40.740
What's that have to do with your job?

316
00:14:40.740 --> 00:14:45.740
<v ->So the hospital was contracting licensing software</v>

317
00:14:45.930 --> 00:14:50.930
at the time to do analytics and marketing on its own

318
00:14:51.120 --> 00:14:53.809
and communications for its own website.

319
00:14:53.809 --> 00:14:56.610
<v ->But that's what you say in that...</v>

320
00:14:56.610 --> 00:14:59.580
You say it's gonna be used for security purposes

321
00:14:59.580 --> 00:15:01.950
and to enhance your own services.

322
00:15:01.950 --> 00:15:04.920
But it's actually being sold to a third party

323
00:15:04.920 --> 00:15:06.723
I take it to make money.

324
00:15:08.280 --> 00:15:11.400
That's not what a hospital does, does it?

325
00:15:11.400 --> 00:15:13.080
It's not what a hospital normally does.

326
00:15:13.080 --> 00:15:15.600
<v ->So we're not getting paid for it.</v>

327
00:15:15.600 --> 00:15:16.710
Now, there is an allegation

328
00:15:16.710 --> 00:15:19.560
that we're getting the software provided for free,

329
00:15:19.560 --> 00:15:21.572
but we're not getting paid by Google or Facebook.

330
00:15:21.572 --> 00:15:22.800
<v ->You don't make any money off of this</v>

331
00:15:22.800 --> 00:15:24.900
and you're giving out all this information?

332
00:15:24.900 --> 00:15:27.510
<v ->I mean, we're using analytics technology</v>

333
00:15:27.510 --> 00:15:30.510
as more than a dozen other hospitals

334
00:15:30.510 --> 00:15:31.343
in the Commonwealth have.

335
00:15:31.343 --> 00:15:32.326
<v ->I'm not saying you're any different.</v>

336
00:15:32.326 --> 00:15:35.100
<v ->99% of the hospitals have.</v>
<v ->I just don't know.</v>

337
00:15:35.100 --> 00:15:37.440
To me, the ordinary course of a hospital's business

338
00:15:37.440 --> 00:15:39.000
is taking care of patients.

339
00:15:39.000 --> 00:15:40.600
I don't understand what this is.

340
00:15:42.313 --> 00:15:43.560
<v ->This is the same technology</v>

341
00:15:43.560 --> 00:15:46.410
that's sitting on mass.gov right now,

342
00:15:46.410 --> 00:15:48.090
including this court's website.

343
00:15:48.090 --> 00:15:52.317
So we're not getting paid to sell data here.

344
00:15:52.317 --> 00:15:55.080
<v ->Yeah, but when people ask for the SJC docket,</v>

345
00:15:55.080 --> 00:15:57.603
they don't get ads for gavels, right?

346
00:15:58.740 --> 00:16:00.690
<v ->They might if that were commercially...</v>

347
00:16:00.690 --> 00:16:04.170
Google Analytics and Facebook technology

348
00:16:04.170 --> 00:16:08.250
have long been sitting on all of

349
00:16:08.250 --> 00:16:10.380
and specific parts of mass.gov,

350
00:16:10.380 --> 00:16:12.510
including the state's hospitals,

351
00:16:12.510 --> 00:16:17.280
including the state's substance abuse resources.

352
00:16:17.280 --> 00:16:21.030
<v ->I take it, the notice that they put up,</v>

353
00:16:21.030 --> 00:16:23.580
I hope it was broader than the notice you put up,

354
00:16:23.580 --> 00:16:24.900
which is, we're only gonna use this

355
00:16:24.900 --> 00:16:27.750
for security and blankety blank,

356
00:16:27.750 --> 00:16:30.060
and only our own internal third party provider.

357
00:16:30.060 --> 00:16:34.860
It doesn't mention Google and AdTech or whatever they are.

358
00:16:34.860 --> 00:16:36.540
<v ->So it's funny you mention that, Justice Kafker,</v>

359
00:16:36.540 --> 00:16:41.070
because the notice at the time when this lawsuit was filed

360
00:16:41.070 --> 00:16:42.180
was very similar.

361
00:16:42.180 --> 00:16:45.390
Not word for word identical, but the mass.gov notice

362
00:16:45.390 --> 00:16:48.600
and our notices at the time were very similar.

363
00:16:48.600 --> 00:16:50.220
Unfortunately, plaintiffs have chosen

364
00:16:50.220 --> 00:16:51.177
to try to hit us over the head.

365
00:16:51.177 --> 00:16:52.350
<v ->But we can't decide this case</v>

366
00:16:52.350 --> 00:16:57.350
based on sort of the practical impact on others.

367
00:16:57.630 --> 00:16:59.888
And we should all check our website.

368
00:16:59.888 --> 00:17:01.358
(Judge in background laughing)

369
00:17:01.358 --> 00:17:04.860
But in any event, I guess to that question

370
00:17:04.860 --> 00:17:08.190
about the practical implications of the holding here,

371
00:17:08.190 --> 00:17:11.040
one of the amici suggests, fine.

372
00:17:11.040 --> 00:17:15.570
Literally, the Wiretap Statute may read "on this conduct,"

373
00:17:15.570 --> 00:17:20.280
but please, SJC, make this a prospective decision.

374
00:17:20.280 --> 00:17:23.580
And I'm wondering, what is your thoughts on that?

375
00:17:23.580 --> 00:17:27.840
<v ->So our position is that the Wiretap Act doesn't apply.</v>

376
00:17:27.840 --> 00:17:29.730
<v ->Right, but assuming it does,</v>

377
00:17:29.730 --> 00:17:32.220
because literally it reads "on this conduct."

378
00:17:32.220 --> 00:17:35.820
what is your position on that particular argument

379
00:17:35.820 --> 00:17:38.610
about making this ruling prospective?

380
00:17:38.610 --> 00:17:39.720
<v ->We would certainly urge</v>

381
00:17:39.720 --> 00:17:41.970
if the court does not accept our primary argument

382
00:17:41.970 --> 00:17:43.740
that the court indeed do that.

383
00:17:43.740 --> 00:17:46.470
<v ->And what would be the legal authority for doing that?</v>

384
00:17:46.470 --> 00:17:48.750
<v ->I would have to defer back to the briefing.</v>

385
00:17:48.750 --> 00:17:50.384
<v ->In the amicus?</v>

386
00:17:50.384 --> 00:17:51.956
<v ->In the same amicus brief that Your Honor is referring to.</v>

387
00:17:51.956 --> 00:17:54.900
<v ->Okay, thank you.</v>
<v ->No further argument.</v>

388
00:17:54.900 --> 00:17:57.930
Unless the court has any further questions,

389
00:17:57.930 --> 00:17:58.950
we'll stand on our briefs.

390
00:17:58.950 --> 00:18:00.500
Thank you.
<v ->Thanks very much.</v>

391
00:18:04.980 --> 00:18:06.213
Okay, Attorney Vallely.

392
00:18:09.000 --> 00:18:10.230
<v ->May it please the court,</v>

393
00:18:10.230 --> 00:18:14.100
Patrick Vallely on behalf of the plaintiff, Kathleen Vita.

394
00:18:14.100 --> 00:18:15.990
This case is about hospitals

395
00:18:15.990 --> 00:18:18.120
that allowed technology companies

396
00:18:18.120 --> 00:18:21.660
to eavesdrop on highly sensitive communications

397
00:18:21.660 --> 00:18:25.740
between healthcare consumers and their medical providers.

398
00:18:25.740 --> 00:18:27.840
<v ->Let me ask you about "any communication,"</v>

399
00:18:27.840 --> 00:18:29.523
how broadly that should be read.

400
00:18:30.840 --> 00:18:35.840
As counsel pointed out, when I look at 99 Subsection F,

401
00:18:37.260 --> 00:18:39.330
on the search warrant requirements,

402
00:18:39.330 --> 00:18:41.760
it talks about "oral or wire communications."

403
00:18:41.760 --> 00:18:44.040
And this is a wire communication.

404
00:18:44.040 --> 00:18:47.430
And then it says "such conversations."

405
00:18:47.430 --> 00:18:51.960
So it terms 'em as a conversation.

406
00:18:51.960 --> 00:18:55.293
And then when I look at Rainey and Rivera,

407
00:18:56.400 --> 00:18:58.320
both those cases say the statute

408
00:18:58.320 --> 00:19:00.780
protects private conversations.

409
00:19:00.780 --> 00:19:01.890
So given what we said

410
00:19:01.890 --> 00:19:05.130
about the statute protecting private conversations,

411
00:19:05.130 --> 00:19:07.110
and given that the language in the statute

412
00:19:07.110 --> 00:19:11.943
also uses the word conversations, is this a conversation?

413
00:19:13.110 --> 00:19:17.610
<v ->The short answer is yes, as I think of...</v>

414
00:19:17.610 --> 00:19:20.013
Well, let's take a step back first.

415
00:19:21.180 --> 00:19:24.090
The key operative provisions of this statute

416
00:19:24.090 --> 00:19:26.043
are largely found in the definitions.

417
00:19:27.060 --> 00:19:29.550
In particular, the definition we focus on

418
00:19:29.550 --> 00:19:31.860
is the definition of wire communication.

419
00:19:31.860 --> 00:19:33.510
And wire communication,

420
00:19:33.510 --> 00:19:35.550
the definition refers to transmissions

421
00:19:35.550 --> 00:19:38.550
between points of origin and points of reception.

422
00:19:38.550 --> 00:19:40.770
That language and the operative definitions

423
00:19:40.770 --> 00:19:42.840
that apply in this case

424
00:19:42.840 --> 00:19:45.870
fall squarely within exactly what the internet is.

425
00:19:45.870 --> 00:19:47.910
<v ->We've had the booking room cases.</v>

426
00:19:47.910 --> 00:19:52.320
We've had the body-worn camera cases.

427
00:19:52.320 --> 00:19:54.780
We've had other cases where in Rainey

428
00:19:54.780 --> 00:19:59.780
where we had the robbery of the store and the communication.

429
00:20:00.330 --> 00:20:02.827
We said, "We know it says 'any communication,'

430
00:20:02.827 --> 00:20:05.670
"but we need to look at the purpose of the statute."

431
00:20:05.670 --> 00:20:08.553
And it doesn't cover everything that's said.

432
00:20:09.480 --> 00:20:12.360
<v ->Well, I think it's certainly accurate</v>

433
00:20:12.360 --> 00:20:14.670
that the statute covers conversations.

434
00:20:14.670 --> 00:20:17.490
The question that the defendants are posing

435
00:20:17.490 --> 00:20:19.410
through their arguments is whether it's limited

436
00:20:19.410 --> 00:20:21.600
to interpersonal conversations.

437
00:20:21.600 --> 00:20:24.150
And even though the court at certain times

438
00:20:24.150 --> 00:20:26.370
has used the word conversations to describe a-

439
00:20:26.370 --> 00:20:31.370
<v ->But are you conceding that any communication</v>

440
00:20:31.560 --> 00:20:33.780
means any conversation?

441
00:20:33.780 --> 00:20:38.040
<v ->I'm certainly not conceding that the word communication</v>

442
00:20:38.040 --> 00:20:40.680
is limited to interpersonal conversations.

443
00:20:40.680 --> 00:20:41.670
We reject that argument.

444
00:20:41.670 --> 00:20:43.140
<v ->All right, what about the second word?</v>

445
00:20:43.140 --> 00:20:44.940
Is it limited to conversations?

446
00:20:44.940 --> 00:20:48.210
<v ->It depends necessarily on the meaning of that word.</v>

447
00:20:48.210 --> 00:20:49.650
If the defendants are correct

448
00:20:49.650 --> 00:20:51.780
that conversations by definition

449
00:20:51.780 --> 00:20:54.240
involves only communications between individuals,

450
00:20:54.240 --> 00:20:55.475
then we would reject that proposition.

451
00:20:55.475 --> 00:20:57.450
<v ->Okay, then answer my question.</v>

452
00:20:57.450 --> 00:21:01.980
Does it entail necessarily conversations?

453
00:21:01.980 --> 00:21:04.170
<v ->I don't think the statute by its terms</v>

454
00:21:04.170 --> 00:21:05.880
is limited to conversations.

455
00:21:05.880 --> 00:21:07.170
I think the operative definitions

456
00:21:07.170 --> 00:21:09.810
uses the word communications which is arguably broader.

457
00:21:09.810 --> 00:21:13.080
<v ->Then why did the legislature in section F</v>

458
00:21:13.080 --> 00:21:14.763
use the word conversation?

459
00:21:16.320 --> 00:21:18.450
<v ->Well, it's one word in the statute.</v>

460
00:21:18.450 --> 00:21:21.540
The statute uses the word communications a few dozen times

461
00:21:21.540 --> 00:21:23.760
and uses the word conversation once.

462
00:21:23.760 --> 00:21:26.490
I think it would read a lot into that one provision,

463
00:21:26.490 --> 00:21:28.633
which relates to one procedural issue.

464
00:21:28.633 --> 00:21:30.870
<v ->But, Counsel, it's not just that one word though, right?</v>

465
00:21:30.870 --> 00:21:33.120
It's also the concern with eavesdropping,

466
00:21:33.120 --> 00:21:35.400
which is throughout the statute, right,

467
00:21:35.400 --> 00:21:37.890
and in the preamble and in the legislative history.

468
00:21:37.890 --> 00:21:40.980
And eavesdropping has a really common meaning, right?

469
00:21:40.980 --> 00:21:43.770
Like eavesdropping is a longstanding,

470
00:21:43.770 --> 00:21:47.280
pre advanced technology era concept

471
00:21:47.280 --> 00:21:49.500
where two people are having a conversation

472
00:21:49.500 --> 00:21:51.120
and then a person is listening in.

473
00:21:51.120 --> 00:21:54.060
And this statute was designed

474
00:21:54.060 --> 00:21:56.310
because the legislature was concerned

475
00:21:56.310 --> 00:21:59.700
that there were new technologically advanced ways

476
00:21:59.700 --> 00:22:02.220
of eavesdropping and they were trying to stop that.

477
00:22:02.220 --> 00:22:03.360
Correct?

478
00:22:03.360 --> 00:22:04.410
<v ->I think that's correct.</v>

479
00:22:04.410 --> 00:22:07.470
And I think our case very much does allege eavesdropping

480
00:22:07.470 --> 00:22:10.500
as that word is ordinarily used.

481
00:22:10.500 --> 00:22:13.290
Now true, back in 1968,

482
00:22:13.290 --> 00:22:15.750
the legislature didn't specifically anticipate

483
00:22:15.750 --> 00:22:17.610
the internet as a technology.

484
00:22:17.610 --> 00:22:18.870
But what it made very clear

485
00:22:18.870 --> 00:22:21.540
both in the terms of the statute and the preamble,

486
00:22:21.540 --> 00:22:24.300
is that it understood that new technologies would continue

487
00:22:24.300 --> 00:22:26.160
to be developed over the years

488
00:22:26.160 --> 00:22:28.440
that posed threats to the privacy of citizens

489
00:22:28.440 --> 00:22:29.610
of the Commonwealth.

490
00:22:29.610 --> 00:22:30.900
And although it didn't know at the time

491
00:22:30.900 --> 00:22:33.360
exactly what those technologies would be,

492
00:22:33.360 --> 00:22:35.430
it intended to draft a broad statute

493
00:22:35.430 --> 00:22:37.650
that would cover those future technologies.

494
00:22:37.650 --> 00:22:39.270
And you see that in the definition

495
00:22:39.270 --> 00:22:41.190
of wire communication I mentioned a moment ago

496
00:22:41.190 --> 00:22:44.310
that refers to transmissions between points of origin

497
00:22:44.310 --> 00:22:46.020
and points of reception.

498
00:22:46.020 --> 00:22:48.510
You see that in this court's decision in Moody,

499
00:22:48.510 --> 00:22:52.230
that that definition that I just quoted to you

500
00:22:52.230 --> 00:22:54.150
from wire communication is broad enough

501
00:22:54.150 --> 00:22:56.970
to include non-oral electronic transmission.

502
00:22:56.970 --> 00:23:01.440
<v ->So given that breadth that the legislature</v>

503
00:23:01.440 --> 00:23:03.120
was clairvoyant in seeing

504
00:23:03.120 --> 00:23:07.233
and the dangers that they wanted to protect citizens from,

505
00:23:08.160 --> 00:23:13.160
why would we read telephone and telegraph so literally

506
00:23:13.320 --> 00:23:15.180
in the exception that the defendants

507
00:23:15.180 --> 00:23:19.080
want to take advantage of?

508
00:23:19.080 --> 00:23:21.630
<v ->Well first, the plain terms dictate</v>

509
00:23:21.630 --> 00:23:25.530
that the exception is narrower than the general prohibition.

510
00:23:25.530 --> 00:23:27.540
The general prohibition applies broadly

511
00:23:27.540 --> 00:23:29.520
to intercepting devices.

512
00:23:29.520 --> 00:23:31.380
And the exception applies more narrowly

513
00:23:31.380 --> 00:23:32.940
to a subset of those devices specifically.

514
00:23:32.940 --> 00:23:34.770
<v ->And so you think it was purposeful</v>

515
00:23:34.770 --> 00:23:37.380
that the legislature limited itself

516
00:23:37.380 --> 00:23:41.580
to 1960-era technology even though they were clairvoyant

517
00:23:41.580 --> 00:23:45.810
about future technologies and the interception of those?

518
00:23:45.810 --> 00:23:48.150
<v ->Well, there certainly have been technologies</v>

519
00:23:48.150 --> 00:23:51.153
that have developed since 1968
<v ->Clearly.</v>

520
00:23:52.020 --> 00:23:54.630
<v ->that would fall within the definition of a telephone.</v>

521
00:23:54.630 --> 00:23:57.270
I would concede, for example, that cellular telephones,

522
00:23:57.270 --> 00:23:59.550
although they did not exist in 1968,

523
00:23:59.550 --> 00:24:01.740
would qualify for the telephone exemption

524
00:24:01.740 --> 00:24:04.830
if their other requirements of the exemption or met,

525
00:24:04.830 --> 00:24:08.460
if it's in fact telephone equipment.

526
00:24:08.460 --> 00:24:12.270
But even on that issue, the case law is clear.

527
00:24:12.270 --> 00:24:14.100
And frankly, it's a little bit better developed

528
00:24:14.100 --> 00:24:16.380
in the federal courts which construe,

529
00:24:16.380 --> 00:24:18.660
if the language comes directly from the federal act,

530
00:24:18.660 --> 00:24:19.860
it's not different,

531
00:24:19.860 --> 00:24:22.320
that not all interceptions that involve telephones

532
00:24:22.320 --> 00:24:24.660
necessarily qualify for the exemption.

533
00:24:24.660 --> 00:24:27.390
Rather, the intercepting device itself

534
00:24:27.390 --> 00:24:29.280
must be a form of telephone equipment

535
00:24:29.280 --> 00:24:32.768
or some kind of infrastructure of the telephone system.

536
00:24:32.768 --> 00:24:35.040
<v ->Are there any limiting principles?</v>

537
00:24:35.040 --> 00:24:40.040
'Cause I mean, if browsing is a communication

538
00:24:41.730 --> 00:24:44.550
and any device, any software device

539
00:24:44.550 --> 00:24:47.670
that tracks it is covered,

540
00:24:47.670 --> 00:24:49.530
I mean, I'm just trying to understand this thing.

541
00:24:49.530 --> 00:24:52.263
It's ust everybody's violating it.

542
00:24:54.779 --> 00:24:56.070
I mean, I'm just trying to understand.

543
00:24:56.070 --> 00:24:57.843
Is there a limiting principle here?

544
00:24:58.980 --> 00:25:00.150
And what is it?

545
00:25:00.150 --> 00:25:02.490
<v ->Well, focusing on what a communication is.</v>

546
00:25:02.490 --> 00:25:06.570
A communication at its core is an interaction

547
00:25:06.570 --> 00:25:07.710
between two parties.

548
00:25:07.710 --> 00:25:10.620
It's an exchange of information between two parties.

549
00:25:10.620 --> 00:25:14.040
And even on what the defendants call informational

550
00:25:14.040 --> 00:25:17.610
or parts of the website, when you interact with the website,

551
00:25:17.610 --> 00:25:18.750
when you click on a link,

552
00:25:18.750 --> 00:25:21.630
you're requesting information on a topic.

553
00:25:21.630 --> 00:25:23.160
And then the business through the website

554
00:25:23.160 --> 00:25:24.600
is responding to your request

555
00:25:24.600 --> 00:25:25.433
by providing that information.

556
00:25:25.433 --> 00:25:26.550
<v ->Well, the business isn't doing anything.</v>

557
00:25:26.550 --> 00:25:28.560
The business could be asleep, right?

558
00:25:28.560 --> 00:25:32.160
The business just has a website that is already set up

559
00:25:32.160 --> 00:25:34.500
with information on it that people can access.

560
00:25:34.500 --> 00:25:35.333
Correct?

561
00:25:35.333 --> 00:25:37.770
<v ->The website, though, is set up by people, right?</v>

562
00:25:37.770 --> 00:25:39.870
<v ->Well, the website is set up by people.</v>

563
00:25:39.870 --> 00:25:43.781
And I disagree that the business

564
00:25:43.781 --> 00:25:47.010
has to have some kind of consciousness

565
00:25:47.010 --> 00:25:48.930
in the human sense of consciousness,

566
00:25:48.930 --> 00:25:50.980
you know, awareness of the communication

567
00:25:53.070 --> 00:25:54.603
for it to be a communication.

568
00:25:55.740 --> 00:25:57.630
<v ->At least have to be a two-way communication?</v>

569
00:25:57.630 --> 00:26:00.900
It doesn't have to be a two-way communication?

570
00:26:00.900 --> 00:26:02.190
I mean, you're communicating.

571
00:26:02.190 --> 00:26:05.717
I understand your client is communicating information

572
00:26:05.717 --> 00:26:09.210
to Beth Israel Deaconess.

573
00:26:09.210 --> 00:26:14.210
But if they don't respond back, is that a communication?

574
00:26:14.310 --> 00:26:16.408
I'm just trying to understand that.

575
00:26:16.408 --> 00:26:17.700
<v ->Well, in general,</v>

576
00:26:17.700 --> 00:26:20.430
unless the website is down or not functioning,

577
00:26:20.430 --> 00:26:22.740
the business does respond back through the website.

578
00:26:22.740 --> 00:26:25.020
The website user requests information,

579
00:26:25.020 --> 00:26:27.030
and the website responds to that

580
00:26:27.030 --> 00:26:28.770
by providing the information requested.

581
00:26:28.770 --> 00:26:31.140
<v ->So does it have to be a return?</v>

582
00:26:31.140 --> 00:26:33.060
Literally, I mean, it could be AI.

583
00:26:33.060 --> 00:26:35.940
But does there have to be something coming back

584
00:26:35.940 --> 00:26:37.260
from Beth Israel?

585
00:26:37.260 --> 00:26:41.490
Or is it just anytime you start browsing, you're covered?

586
00:26:41.490 --> 00:26:43.530
<v ->Well, I think anytime you're browsing</v>

587
00:26:43.530 --> 00:26:46.020
and you're clicking on links and requesting information

588
00:26:46.020 --> 00:26:48.494
and the website is loading successfully,

589
00:26:48.494 --> 00:26:51.900
the response is a communication.

590
00:26:51.900 --> 00:26:52.733
It is an interaction.

591
00:26:52.733 --> 00:26:55.980
<v ->So I wanna find out what the hours of operation</v>

592
00:26:55.980 --> 00:26:58.830
of a gift shop are, and I go on the website,

593
00:26:58.830 --> 00:27:00.510
that's a communication?

594
00:27:00.510 --> 00:27:02.877
<v ->If you're requesting information from the business</v>

595
00:27:02.877 --> 00:27:04.260
and the business is responding,

596
00:27:04.260 --> 00:27:05.760
that would be a communication.

597
00:27:05.760 --> 00:27:07.950
<v ->Is that a conversation too?</v>

598
00:27:07.950 --> 00:27:09.663
<v ->Is it a conversation?</v>

599
00:27:10.687 --> 00:27:12.213
I believe it would be.

600
00:27:14.070 --> 00:27:16.470
<v ->Okay, so they've posted the hours of operation.</v>

601
00:27:16.470 --> 00:27:17.790
'Cause I'm gonna go visit my mother,

602
00:27:17.790 --> 00:27:20.145
I wanna see if I can buy her a plant.

603
00:27:20.145 --> 00:27:23.250
What's the conversation?

604
00:27:23.250 --> 00:27:25.020
<v ->The conversation is you have requested</v>

605
00:27:25.020 --> 00:27:28.380
from the business information about their business.

606
00:27:28.380 --> 00:27:31.030
And the business has responded with that information.

607
00:27:31.991 --> 00:27:35.160
<v ->Does communication have to be a conversation?</v>

608
00:27:35.160 --> 00:27:38.280
I guess I'm wondering, isn't a conversation,

609
00:27:38.280 --> 00:27:40.500
the back and forth between two individuals,

610
00:27:40.500 --> 00:27:44.700
a subset of communications which has a broader definition

611
00:27:44.700 --> 00:27:47.010
of an exchange of ideas.

612
00:27:47.010 --> 00:27:49.950
<v ->I agree with Your Honor that the word communication</v>

613
00:27:49.950 --> 00:27:51.867
is arguably broader than conversation.

614
00:27:51.867 --> 00:27:53.880
And the operative provisions of the statute

615
00:27:53.880 --> 00:27:56.010
use the word communication.

616
00:27:56.010 --> 00:27:57.270
<v ->What do we do with our case law</v>

617
00:27:57.270 --> 00:28:00.780
that says it covers private conversations.

618
00:28:00.780 --> 00:28:04.290
<v ->I think that the case law doesn't say it's limited</v>

619
00:28:04.290 --> 00:28:05.490
to private conversations.

620
00:28:05.490 --> 00:28:08.040
In fact, several cases have rejected that proposition,

621
00:28:08.040 --> 00:28:11.250
particularly when Your Honor used the word private,

622
00:28:11.250 --> 00:28:13.950
that there's any limitations such as found

623
00:28:13.950 --> 00:28:16.320
in other jurisdiction's wiretap laws

624
00:28:16.320 --> 00:28:18.630
that there's some kind of reasonable expectation

625
00:28:18.630 --> 00:28:20.310
of privacy requirement.

626
00:28:20.310 --> 00:28:22.110
But setting that issue aside,

627
00:28:22.110 --> 00:28:26.130
I agree that the operative provisions here

628
00:28:26.130 --> 00:28:27.270
refer to communications.

629
00:28:27.270 --> 00:28:29.280
And communications is a broader term,

630
00:28:29.280 --> 00:28:31.950
particularly the term wire communications

631
00:28:31.950 --> 00:28:33.420
which refers to transmissions

632
00:28:33.420 --> 00:28:36.060
between points of origin and points of reception,

633
00:28:36.060 --> 00:28:40.500
which is a concept that's broader than a conversation

634
00:28:40.500 --> 00:28:43.820
and fits perfectly with what the internet is.

635
00:28:43.820 --> 00:28:46.320
<v ->So this lawsuit is a little surprising, I think,</v>

636
00:28:46.320 --> 00:28:49.680
to most website developers and owners.

637
00:28:49.680 --> 00:28:53.730
Is there a response, and I'll give you the opportunity,

638
00:28:53.730 --> 00:28:56.850
to the idea that if you're right,

639
00:28:56.850 --> 00:28:59.073
that this should be a prospective holding?

640
00:29:00.049 --> 00:29:02.540
I didn't see it in your reply to the amici.

641
00:29:02.540 --> 00:29:05.730
So I'm giving you the opportunity to do it here.

642
00:29:05.730 --> 00:29:08.310
<v ->Yes, I think a core part of that response</v>

643
00:29:08.310 --> 00:29:09.990
is a recognition that

644
00:29:09.990 --> 00:29:13.380
when the four superior court justices

645
00:29:13.380 --> 00:29:14.640
that have upheld these claims,

646
00:29:14.640 --> 00:29:16.800
they were not writing on a blank slate.

647
00:29:16.800 --> 00:29:19.230
I think the most notable authority on that issue

648
00:29:19.230 --> 00:29:21.960
is the First Circuit's decision in PharmaTrack.

649
00:29:21.960 --> 00:29:23.490
And that decision is remarkable

650
00:29:23.490 --> 00:29:26.250
that when you look at the facts of that case,

651
00:29:26.250 --> 00:29:29.400
even before Google and Facebook were household names,

652
00:29:29.400 --> 00:29:31.540
the technology at issue in PharmaTrack

653
00:29:32.640 --> 00:29:35.100
was practically identical to the technology at issue.

654
00:29:35.100 --> 00:29:37.590
<v ->But importantly, the statute was very different.</v>

655
00:29:37.590 --> 00:29:38.537
Was it not?

656
00:29:40.950 --> 00:29:43.800
<v ->The federal statute in some respects is less protective</v>

657
00:29:43.800 --> 00:29:45.960
of privacy than the Massachusetts statute.

658
00:29:45.960 --> 00:29:49.230
The Massachusetts statute imposes stricter regulation

659
00:29:49.230 --> 00:29:50.980
on businesses than the federal law.

660
00:29:52.922 --> 00:29:56.280
But the short answer is, is that from PharmaTrack forward,

661
00:29:56.280 --> 00:29:59.430
which was in 2003, more than 20 years ago,

662
00:29:59.430 --> 00:30:01.920
businesses were on notice that using these kinds

663
00:30:01.920 --> 00:30:03.993
of tracking technologies on a website,

664
00:30:05.010 --> 00:30:08.040
those technologies created communications

665
00:30:08.040 --> 00:30:10.650
that fell within the scope of the Wiretap Law.

666
00:30:10.650 --> 00:30:12.540
And importantly, even though that decision

667
00:30:12.540 --> 00:30:15.870
is now 20 years ago, the republic has not failed.

668
00:30:15.870 --> 00:30:18.030
Businesses have not gone outta business.

669
00:30:18.030 --> 00:30:20.700
In fact, they've continued to use AdTech,

670
00:30:20.700 --> 00:30:23.190
and most of them lawfully so.

671
00:30:23.190 --> 00:30:24.600
In the defendant's own amicus,

672
00:30:24.600 --> 00:30:26.070
the National Retail Federation

673
00:30:26.070 --> 00:30:28.440
explains a large part about why that is,

674
00:30:28.440 --> 00:30:31.440
about why the republic did not fail after PharmaTrack.

675
00:30:31.440 --> 00:30:34.560
And that is that according to their own amicus,

676
00:30:34.560 --> 00:30:38.610
the vast majority of website owners disclose the AdTech

677
00:30:38.610 --> 00:30:40.887
and therefore do not face liability under the statute.

678
00:30:40.887 --> 00:30:42.360
<v ->Can I ask about that?</v>

679
00:30:42.360 --> 00:30:46.800
So one of the arguments that opposing counsel makes is:

680
00:30:46.800 --> 00:30:48.693
You know you're being monitored.

681
00:30:50.040 --> 00:30:53.197
The cookies and the notice says,

682
00:30:53.197 --> 00:30:55.650
"There's monitoring going on here by our third party."

683
00:30:55.650 --> 00:30:58.890
They may be misrepresenting exactly what they're doing.

684
00:30:58.890 --> 00:31:01.920
But this is not a case where you don't...

685
00:31:01.920 --> 00:31:04.170
You know you're being eavesdropped on.

686
00:31:04.170 --> 00:31:07.650
You know that this is being monitored.

687
00:31:07.650 --> 00:31:09.060
They say it up front.

688
00:31:09.060 --> 00:31:12.063
Do you have to identify everybody who's monitoring you?

689
00:31:12.900 --> 00:31:16.440
I mean, this is not a surprise

690
00:31:16.440 --> 00:31:18.510
that they are keeping track of this.

691
00:31:18.510 --> 00:31:21.360
They say it right on the website.

692
00:31:21.360 --> 00:31:23.310
<v ->I would respectfully disagree.</v>

693
00:31:23.310 --> 00:31:25.260
I think what they disclose on their website

694
00:31:25.260 --> 00:31:28.500
is that their web server maintains logs.

695
00:31:28.500 --> 00:31:30.600
<v ->No, I thought it was much more explicit than that.</v>

696
00:31:30.600 --> 00:31:32.617
It says that, "We are sharing this

697
00:31:32.617 --> 00:31:35.197
"with our third party administrator for security

698
00:31:35.197 --> 00:31:36.717
"and other purposes."

699
00:31:38.250 --> 00:31:40.380
I mean, I've read the notice.

700
00:31:40.380 --> 00:31:44.010
So you know you're being eavesdropped on.

701
00:31:44.010 --> 00:31:47.981
<v ->I would respectfully reject the proposition that-</v>

702
00:31:47.981 --> 00:31:49.923
<v ->You're being monitored.</v>

703
00:31:49.923 --> 00:31:52.260
<v ->That that discloses any eavesdropping.</v>

704
00:31:52.260 --> 00:31:56.340
They recognize, as is true among many modern websites,

705
00:31:56.340 --> 00:31:58.950
that websites are often hosted by third party providers.

706
00:31:58.950 --> 00:32:01.500
<v ->Isn't the difference that the disclosure</v>

707
00:32:01.500 --> 00:32:04.500
says it's anonymous and in fact it isn't?

708
00:32:04.500 --> 00:32:06.390
<v ->I think those allegations are significant.</v>

709
00:32:06.390 --> 00:32:08.940
But I think also the allegations are very specific.

710
00:32:08.940 --> 00:32:11.280
There's a paragraph referring explicitly

711
00:32:11.280 --> 00:32:13.440
to their recording of website activity.

712
00:32:13.440 --> 00:32:15.697
And they state in very explicit terms,

713
00:32:15.697 --> 00:32:20.190
"We will not share this information with outside parties."

714
00:32:20.190 --> 00:32:21.540
It cannot be the case

715
00:32:21.540 --> 00:32:23.430
under the secrecy prong of the statute

716
00:32:23.430 --> 00:32:26.280
that when you have a statement like that in your policy

717
00:32:26.280 --> 00:32:29.010
that frankly is a lie to consumers

718
00:32:29.010 --> 00:32:31.113
about what they're doing with this data,

719
00:32:32.483 --> 00:32:35.640
that that form of eavesdropping is non secret.

720
00:32:35.640 --> 00:32:37.290
<v ->Well, it's contradictory, right?</v>

721
00:32:37.290 --> 00:32:40.650
Because it also says. "We share information with our,"

722
00:32:40.650 --> 00:32:43.200
I think it says, "third party service providers"

723
00:32:43.200 --> 00:32:44.033
or something like that.

724
00:32:44.033 --> 00:32:45.540
It does say that, does it not?

725
00:32:45.540 --> 00:32:48.480
<v ->Yes, but earlier in that same sentence,</v>

726
00:32:48.480 --> 00:32:51.270
it makes clear that what it's referring to are web servers.

727
00:32:51.270 --> 00:32:53.550
So it's their third party web server providers.

728
00:32:53.550 --> 00:32:57.240
So you can't just take a few words out of context.

729
00:32:57.240 --> 00:33:01.860
The context of that is that they limit any recording

730
00:33:01.860 --> 00:33:03.180
to their web server logs

731
00:33:03.180 --> 00:33:05.250
whether that's the business itself

732
00:33:05.250 --> 00:33:07.440
possessing the web servers or a third party.

733
00:33:07.440 --> 00:33:09.690
And beyond that, they engage in no sharing

734
00:33:09.690 --> 00:33:13.200
or permit no eavesdropping by any outside organizations,

735
00:33:13.200 --> 00:33:15.630
which is a statement that's categorically false

736
00:33:15.630 --> 00:33:17.820
and rendered the interception secret.

737
00:33:17.820 --> 00:33:20.010
<v ->If it's okay, could I just ask you to respond</v>

738
00:33:20.010 --> 00:33:21.240
to something we were discussing earlier,

739
00:33:21.240 --> 00:33:24.000
which is the what I'll call the paragraph 10 issue?

740
00:33:24.000 --> 00:33:26.550
I just wanna give you a chance to respond to the concern

741
00:33:26.550 --> 00:33:29.880
that your brief discusses a whole variety of different kinds

742
00:33:29.880 --> 00:33:33.780
of ways that the wiretap app could be violated

743
00:33:33.780 --> 00:33:36.720
in these just general realm.

744
00:33:36.720 --> 00:33:38.970
But then paragraph 10 for this plaintiff

745
00:33:38.970 --> 00:33:41.070
only alleges certain kinds of actions

746
00:33:41.070 --> 00:33:42.480
that she took with respect to the website

747
00:33:42.480 --> 00:33:46.110
and does not address, for example, filling out forms

748
00:33:46.110 --> 00:33:48.060
requesting an appointment and so forth.

749
00:33:48.060 --> 00:33:50.490
So can you respond to Justice Gaziano's question

750
00:33:50.490 --> 00:33:53.850
about, you know, is this an all or nothing question?

751
00:33:53.850 --> 00:33:55.860
And I'm not asking about standing.

752
00:33:55.860 --> 00:33:57.690
This is separate from that.

753
00:33:57.690 --> 00:34:01.230
<v ->Yes, so I do recognize that in our complaint,</v>

754
00:34:01.230 --> 00:34:04.590
we describe our plaintiff's interaction with the website

755
00:34:04.590 --> 00:34:06.630
in fairly general terms in part.

756
00:34:06.630 --> 00:34:09.810
Remember, the object of this lawsuit is to protect privacy.

757
00:34:09.810 --> 00:34:12.210
So we did not want to go through and disclose

758
00:34:12.210 --> 00:34:15.180
her medical conditions in a publicly filed complaint.

759
00:34:15.180 --> 00:34:16.170
But we do describe,

760
00:34:16.170 --> 00:34:17.880
and I'm referring to the Beth Israel complaint,

761
00:34:17.880 --> 00:34:19.590
paragraph 10 in particular,

762
00:34:19.590 --> 00:34:22.117
how she used the website to quote, "search for information

763
00:34:22.117 --> 00:34:24.840
"on particular symptoms, conditions and medical procedures,"

764
00:34:24.840 --> 00:34:27.540
close quote, and how she also uses the website

765
00:34:27.540 --> 00:34:30.270
to obtain medical records.

766
00:34:30.270 --> 00:34:33.000
And I agree that there are additional examples

767
00:34:33.000 --> 00:34:36.090
that we give just in defining and explaining

768
00:34:36.090 --> 00:34:37.650
our class claims in our complaint

769
00:34:37.650 --> 00:34:42.090
that are additional categories of pages that are on the page

770
00:34:42.090 --> 00:34:44.313
that the tracking technologies were also on.

771
00:34:45.240 --> 00:34:46.530
And we're not saying our plaintiff

772
00:34:46.530 --> 00:34:48.630
visited every page on the website.

773
00:34:48.630 --> 00:34:52.470
But it certainly meets a notice pleading standard

774
00:34:52.470 --> 00:34:53.760
informing them of the conduct.

775
00:34:53.760 --> 00:34:55.980
And per my argument-

776
00:34:55.980 --> 00:35:00.240
<v ->You're not arguing the medical records information</v>

777
00:35:00.240 --> 00:35:02.460
was transferred to a third party, right?

778
00:35:02.460 --> 00:35:04.920
I thought that that's clearly not the case.

779
00:35:04.920 --> 00:35:06.870
That's a different part of the website.

780
00:35:11.460 --> 00:35:13.770
<v ->The substance of the medical records</v>

781
00:35:13.770 --> 00:35:16.920
does not appear, based on our current investigation,

782
00:35:16.920 --> 00:35:18.330
that that was intercepted.

783
00:35:18.330 --> 00:35:20.880
Although I do have to admit that the degree

784
00:35:20.880 --> 00:35:22.500
to which any tracking technologies

785
00:35:22.500 --> 00:35:24.900
may have been used earlier in the class period

786
00:35:24.900 --> 00:35:27.000
within the patient portal is a fact we don't know

787
00:35:27.000 --> 00:35:28.380
one way or the other.

788
00:35:28.380 --> 00:35:30.180
I agree, we don't affirmatively allege it,

789
00:35:30.180 --> 00:35:32.550
but that there's no way after the fact

790
00:35:32.550 --> 00:35:33.810
to go back and recreate it.

791
00:35:33.810 --> 00:35:37.560
Just the nature of what versions of webpages are archived

792
00:35:37.560 --> 00:35:38.700
and which are not.

793
00:35:38.700 --> 00:35:42.840
<v ->So going forward, anybody who goes online,</v>

794
00:35:42.840 --> 00:35:47.343
as long as it's disclosed, they won't violate the statute.

795
00:35:49.170 --> 00:35:54.000
But there's not gonna be any chance to opt out, right?

796
00:35:54.000 --> 00:35:58.710
I mean, it's disclosed and that's the end of it.

797
00:35:58.710 --> 00:36:01.860
<v ->I agree that under the Massachusetts act in particular,</v>

798
00:36:01.860 --> 00:36:03.840
that the way the secrecy element reads,

799
00:36:03.840 --> 00:36:06.930
it does not require affirmative consent.

800
00:36:06.930 --> 00:36:08.910
A person can effectively deny consent

801
00:36:08.910 --> 00:36:12.450
by stopping using the website.

802
00:36:12.450 --> 00:36:15.840
But if a website owner discloses in clear terms

803
00:36:15.840 --> 00:36:18.210
the technologies and the interceptions they create,

804
00:36:18.210 --> 00:36:20.541
then there would be no violation.

805
00:36:20.541 --> 00:36:21.473
<v ->[Chief Justice Budd] Okay.</v>

806
00:36:22.530 --> 00:36:24.480
<v ->Unless anyone has any further questions,</v>

807
00:36:24.480 --> 00:36:26.602
I see my time has expired.

808
00:36:26.602 --> 00:36:28.852
(no audio)

809
00:36:36.700 --> 00:36:38.950
(no audio)

810
00:36:46.591 --> 00:36:48.841
(no audio)

811
00:36:56.712 --> 00:36:58.962
(no audio)

812
00:37:06.862 --> 00:37:09.112
(no audio)

813
00:37:16.631 --> 00:37:18.881
(no audio)

814
00:37:26.683 --> 00:37:28.933
(no audio)

815
00:37:36.612 --> 00:37:38.862
(no audio)

816
00:37:46.452 --> 00:37:48.702
(no audio)