-: SJC 13542,
Kathleen Vita versus New England Baptist Hospital, et al.
(shuffling of desks and papers)
(shuffling of papers continues)
-: Counsel, will you help me
with the pronunciation of your last name?
-: I'd be happy to, Your Honor.
I've been doing that since first grade with teachers.
(Chief Justice Budd laughing)
David Gacioch.
-: [Chief Justice Budd] Great; thank you, Attorney Gacioch.
-: May it please the court, Madam Chief Justice.
My name is David Gacioch
with my colleague Annabel Rodriguez.
I have the honor here
to represent two leading Boston public charities
and medical institutions,
Beth Israel Deaconess Medical Center
and New England Baptist Hospital.
But as we've briefed, what is before the court here,
the stakes stretch far beyond those two institutions.
Here are just four, quickly, among the many reasons why...
The plaintiff must demonstrate the four
among many things the plaintiffs must demonstrate
in order for the court to sustain the trial court's ruling
and to rule for the plaintiffs.
First, that despite its text and legislative history,
the general court intended this statute
not just to cover private conversations between individuals,
but to be broad enough to cover internet browsing in 2024.
Second, simultaneously that the general court
intended the "ordinary course of business" exception
to be narrow and to be stuck
in 1968 telephone and telegraph technology
such that that balance would disappear over time.
Third, that both of these things
are so clear and so unambiguous
that the Commonwealth's well-established rule of lenity
does not have any application here.
And fourth, that the massive civil liability
and criminal exposure
associated with ubiquitous 21st century website technology,
it would be the natural outcome
of plaintiff's approach to the Wiretap Act
is not absurd or unreasonable or unforeseen,
but instead intended by the general court.
-: Let me ask you about the intercepting device argument
that's raised in this case.
How does that reconcile with our Holden and the Moody case
where we allowed cell phones and text messages
through digital means, or through the atmosphere,
to be covered?
You know, wiretaps used to be tapping of a wire
with alligator clips and all that.
And eavesdropping was done by bugs back in the day.
That's not the day anymore.
Police and other people intercept things digitally.
So in Moody, we kind of said that.
Why is code different than what we said in Moody?
-: So we would argue it's not the code, Justice Gaziano,
but instead it's the nature of the "supposed communication"
in air quotes that's being supposedly intercepted.
In Moody, all the court did was extend
to the natural direct successors
to what the general court clearly had in mind in 1968.
The general court
clearly had landline phone conversations in mind.
And Moody said, cell phone conversations
are just the 2013, at that point, equivalent.
-: What's the device that's used
to intercept a cell phone call?
-: In this case it could be... -: Moody.
-: In Moody, I think it was a warranted tap
at the communications carrier level at that point.
Because there's some wire transmission
in between the cell phone tower pieces
of that call that goes through.
And the court noted there was
at least some involvement of wires there.
But I think the broader common sense interpretation
of Moody is:
Text messages are the functional equivalent right now
of what telegrams were in 1968.
Justice Dewar: So sorry, go ahead.
-: I'm sorry, just one more question for me, maybe.
(Justice Gaziano chuckles)
In this case, we talk about browsing.
And I know that the allegations are general.
Is this all or nothing?
I mean, if someone goes on the BI website
and types in a query and wants a response back,
is that covered?
-: So we would argue it's not
because it's not an interpersonal conversation
that's being recorded or being listened to.
-: Where's the interpersonal part of the statute?
Thank you, I'm sorry.
-: I'd happy to answer that.
-: Could I just follow up
on Justice Gaziano's original question?
He asked you about interception device
and, you know, essentially asking
why is that standard met here?
You then immediately pivoted to talking about communication.
I do not read your brief
as really making much of an argument
that there's not an interception device here,
although some of the amici are arguing that point.
Are you indeed really focusing your argument
on the wire communication piece
and not really contesting
that there is an interception device?
-: That's partially correct, Justice Dewar.
I think the one caveat I would add is
because the "ordinary course of business" exception
is part of the intercepting device definition,
we are contesting it in that regard,
but we're not contesting the hardware/software distinction
that's being made here
in terms of just the pure technological advance.
It's the nature of the communication,
and the fact that it was done in this case
quite clearly in the ordinary course of business
that are the basis of our argument.
-: Why is communication interpersonal?
I mean, I just don't understand that argument.
Why does it have to be person to person?
And where is that in the statutory text?
-: So it's in the statutory text at least once.
And that's at Section 99 F2e.
And that's where the general court wrote a statement
that "the oral or wire communications sought,"
this is in the case of a warrant application,
"are material to a particularly described investigation,
"et cetera," and that quote, "such conversations" end quote,
are not legally privileged.
-: Well, why can't there be a conversation with a business?
-: Because it's not a conversation.
This is like looking at a catalog, Justice Gaziano,
or looking at a pamphlet.
This is all pre-printed, pre-generated content
that is on the website
that just like one would look in the index of a catalog...
-: Aren't those called chats online?
-: Yeah, that's the query I asked about.
So if there's a question box and you query,
"I have a problem with my knee joint pain,"
and someone's gonna come back and answer you,
isn't that a conversation that's not interpersonal?
-: That might be, but that's not within the scope
of the plaintiff's allegations here.
The plaintiff has only alleged that she browsed the website
to review pre-existing content, not a chat function,
not something that's generating new content.
-: That's why I asked whether this was all or nothing.
-: [Attorney Gacioch] Yeah.
-: Can I follow up on that? -: No, go ahead.
-: Can I follow up on that?
I think it's paragraph 10, if I'm not mistaken,
of the complaint.
It's either 10 or 11 is the one place
that I saw in the complaint,
although I'll definitely follow up
with the plaintiff on this,
where there was specific conduct of this plaintiff
and specific interactions identified.
And I did not read in that paragraph
something having to do with a form of interaction
that's heavily focused on in their brief,
which is a request on the website for an appointment.
And we encounter these things all the time.
It's a form like, "Your name.
"What's your problem?"
Like it could be a doctor.
It could be any kind of business.
And you write them a little message.
And it's clearly what they are using instead of email,
Right?
Instead of giving you an email address,
they give you a form and you fill it out
and you write them a message.
And I think that I'd be interested to hear your thoughts
about why that does not fall underneath your definition
of communication.
Because you are communicating.
You are writing a message to a business,
and you are expecting that they're going to write back
to you in particular about your issue.
-: So that is probably about as close hypothetically
as one could get in this context.
But just as Your Honor pointed out,
it's not within the scope of what plaintiff alleges
that she did in this case,
which is all of her allegations,
and I agree, they're all in paragraph 10.
There are no other allegations in her complaint
about what she claimed to have done.
In fact, there are more disclaimers
of what she didn't do in the footnotes of her complaints
than there are allegations about what she specifically did.
But all she alleges is that she went,
sought out and received pre-existing content.
-: So but can you address my hypothetical about,
putting that to the side
and understanding your position on that,
if you have a form where a website user fills out the form
requesting an appointment,
would you say that that would be a communication
within the meaning of your definition of communication?
-: That's close to the line at least.
That's as close as it gets
because it's asking for non pre-existing content
in a communication back.
I don't think we're there yet
because of the scope of what this...
Remember, everything the court finds to be within scope here
for civil purposes is in scope
for all of the felony provisions.
-: What's the difference between that and a text message?
-: The difference between that and a text message is
it's a pre-filled form that's merely asking someone
to call back.
-: So I ask for information and then I get information back.
The definition of conversations in Rivera,
in the footnote in Rivera,
it sounds like a conversation to me.
-: I very much agree that it's about as close
as we come here.
It is right at the line.
-: Age of observations, opinions and ideas.
-: But I do wanna stress that the plaintiff's claims are,
first, she doesn't allege that she actually did that.
But second, her claims are much, much broader
than that limited example.
That's a handpicked strategic example for briefing purposes.
Her claims are, defining her proposed class is-
-: No, we get what paragraph 10 says.
-: We've got another plaintiff who goes onto your website
and says, "I'm looking at all the breast cancer doctors."
That's not an inquiry?
I mean, it's revealing thought process.
Maybe it's not a communication, but it's the beginning.
It's communicating information
that obviously is valuable to Beth Israel
and also these third parties, right?
-: It's going on the website
to look at pre-existing content that exists there.
It's like thumbing through a directory
or a catalog in 1968 of content that already exists.
If someone's sitting in a hospital waiting room,
we're flipping through a doctor's directory
or a "Best Doctor's Boston Magazine" issue,
and the surveillance camera
observes that flipping through,
that wouldn't be a Wiretap Act violation.
This isn't either.
-: Can I ask you about your telephone/telegraph exemption?
And you say it's not stuck on telephone and telegraph,
but when you go on in Section D,
there are other exemptions that are specific, right?
There's a switchboard operator, intercom system,
financial trades and transactions.
Why can't we just read the words as they lay
and say it's telephone and telegraph?
-: A couple of reasons, Your Honor.
First, because that's not what, for instance,
the appeals court has done in the past.
Slightly different words of that same exception,
but in Dylan versus MBTA, for example,
the appeals court's whole rationale,
same kind of claim as here, right?
Plaintiff's seeking damages on behalf of a putative class
claiming that: Look, the statute's literal language says X.
It's gotta be, in this case,
equipment from a communications common carrier.
-: And they got it from somebody else?
-: And in Dylan, they got it undisputedly from a third party.
And what the appeals court said was,
"We see that that's the language,
"but that would be an absurd result."
-: But that was specifically absurd
because of the breakup of the monopoly of the Bells, right?
Like basically, they read common carrier
a little more broadly to include not just the monopoly.
Justice Gaziano: It's still the telephone.
-: I mean, I think we read it differently.
It was a specifically designed device
that stood alone from telephones,
was not required to be part of a telephone system.
It was only for recording calls.
In O'Sullivan v Nynex,
in this court's decision a couple of years earlier,
it was a software program
that recorded sales and marketing calls by Nynex
to its subscribers trying to sell additional services.
That was also the ordinary course of business.
-: How is this... -: Go ahead.
-: How is this the ordinary course of business, though?
Selling information to an ad agency or Google
about what potential patients are interested in
on your website, how is that part of a hospital's business?
Ordinary course of business?
It doesn't seem like ordinary to me.
It seems like they're getting
into a for-profit kind of operation.
-: So I think we would respectfully disagree
with the characterization
of selling this information to Google or Facebook.
-: You're giving this to Google so that they know
how to market people.
That's not part of the hospital's job.
I take it the hospital's getting paid
to give this data to the advertising people at Google.
What's that have to do with your job?
-: So the hospital was contracting licensing software
at the time to do analytics and marketing on its own
and communications for its own website.
-: But that's what you say in that...
You say it's gonna be used for security purposes
and to enhance your own services.
But it's actually being sold to a third party
I take it to make money.
That's not what a hospital does, does it?
It's not what a hospital normally does.
-: So we're not getting paid for it.
Now, there is an allegation
that we're getting the software provided for free,
but we're not getting paid by Google or Facebook.
-: You don't make any money off of this
and you're giving out all this information?
-: I mean, we're using analytics technology
as more than a dozen other hospitals
in the Commonwealth have.
-: I'm not saying you're any different.
-: 99% of the hospitals have. -: I just don't know.
To me, the ordinary course of a hospital's business
is taking care of patients.
I don't understand what this is.
-: This is the same technology
that's sitting on mass.gov right now,
including this court's website.
So we're not getting paid to sell data here.
-: Yeah, but when people ask for the SJC docket,
they don't get ads for gavels, right?
-: They might if that were commercially...
Google Analytics and Facebook technology
have long been sitting on all of
and specific parts of mass.gov,
including the state's hospitals,
including the state's substance abuse resources.
-: I take it, the notice that they put up,
I hope it was broader than the notice you put up,
which is, we're only gonna use this
for security and blankety blank,
and only our own internal third party provider.
It doesn't mention Google and AdTech or whatever they are.
-: So it's funny you mention that, Justice Kafker,
because the notice at the time when this lawsuit was filed
was very similar.
Not word for word identical, but the mass.gov notice
and our notices at the time were very similar.
Unfortunately, plaintiffs have chosen
to try to hit us over the head.
-: But we can't decide this case
based on sort of the practical impact on others.
And we should all check our website.
(Judge in background laughing)
But in any event, I guess to that question
about the practical implications of the holding here,
one of the amici suggests, fine.
Literally, the Wiretap Statute may read "on this conduct,"
but please, SJC, make this a prospective decision.
And I'm wondering, what is your thoughts on that?
-: So our position is that the Wiretap Act doesn't apply.
-: Right, but assuming it does,
because literally it reads "on this conduct."
what is your position on that particular argument
about making this ruling prospective?
-: We would certainly urge
if the court does not accept our primary argument
that the court indeed do that.
-: And what would be the legal authority for doing that?
-: I would have to defer back to the briefing.
-: In the amicus?
-: In the same amicus brief that Your Honor is referring to.
-: Okay, thank you. -: No further argument.
Unless the court has any further questions,
we'll stand on our briefs.
Thank you. -: Thanks very much.
Okay, Attorney Vallely.
-: May it please the court,
Patrick Vallely on behalf of the plaintiff, Kathleen Vita.
This case is about hospitals
that allowed technology companies
to eavesdrop on highly sensitive communications
between healthcare consumers and their medical providers.
-: Let me ask you about "any communication,"
how broadly that should be read.
As counsel pointed out, when I look at 99 Subsection F,
on the search warrant requirements,
it talks about "oral or wire communications."
And this is a wire communication.
And then it says "such conversations."
So it terms 'em as a conversation.
And then when I look at Rainey and Rivera,
both those cases say the statute
protects private conversations.
So given what we said
about the statute protecting private conversations,
and given that the language in the statute
also uses the word conversations, is this a conversation?
-: The short answer is yes, as I think of...
Well, let's take a step back first.
The key operative provisions of this statute
are largely found in the definitions.
In particular, the definition we focus on
is the definition of wire communication.
And wire communication,
the definition refers to transmissions
between points of origin and points of reception.
That language and the operative definitions
that apply in this case
fall squarely within exactly what the internet is.
-: We've had the booking room cases.
We've had the body-worn camera cases.
We've had other cases where in Rainey
where we had the robbery of the store and the communication.
We said, "We know it says 'any communication,'
"but we need to look at the purpose of the statute."
And it doesn't cover everything that's said.
-: Well, I think it's certainly accurate
that the statute covers conversations.
The question that the defendants are posing
through their arguments is whether it's limited
to interpersonal conversations.
And even though the court at certain times
has used the word conversations to describe a-
-: But are you conceding that any communication
means any conversation?
-: I'm certainly not conceding that the word communication
is limited to interpersonal conversations.
We reject that argument.
-: All right, what about the second word?
Is it limited to conversations?
-: It depends necessarily on the meaning of that word.
If the defendants are correct
that conversations by definition
involves only communications between individuals,
then we would reject that proposition.
-: Okay, then answer my question.
Does it entail necessarily conversations?
-: I don't think the statute by its terms
is limited to conversations.
I think the operative definitions
uses the word communications which is arguably broader.
-: Then why did the legislature in section F
use the word conversation?
-: Well, it's one word in the statute.
The statute uses the word communications a few dozen times
and uses the word conversation once.
I think it would read a lot into that one provision,
which relates to one procedural issue.
-: But, Counsel, it's not just that one word though, right?
It's also the concern with eavesdropping,
which is throughout the statute, right,
and in the preamble and in the legislative history.
And eavesdropping has a really common meaning, right?
Like eavesdropping is a longstanding,
pre advanced technology era concept
where two people are having a conversation
and then a person is listening in.
And this statute was designed
because the legislature was concerned
that there were new technologically advanced ways
of eavesdropping and they were trying to stop that.
Correct?
-: I think that's correct.
And I think our case very much does allege eavesdropping
as that word is ordinarily used.
Now true, back in 1968,
the legislature didn't specifically anticipate
the internet as a technology.
But what it made very clear
both in the terms of the statute and the preamble,
is that it understood that new technologies would continue
to be developed over the years
that posed threats to the privacy of citizens
of the Commonwealth.
And although it didn't know at the time
exactly what those technologies would be,
it intended to draft a broad statute
that would cover those future technologies.
And you see that in the definition
of wire communication I mentioned a moment ago
that refers to transmissions between points of origin
and points of reception.
You see that in this court's decision in Moody,
that that definition that I just quoted to you
from wire communication is broad enough
to include non-oral electronic transmission.
-: So given that breadth that the legislature
was clairvoyant in seeing
and the dangers that they wanted to protect citizens from,
why would we read telephone and telegraph so literally
in the exception that the defendants
want to take advantage of?
-: Well first, the plain terms dictate
that the exception is narrower than the general prohibition.
The general prohibition applies broadly
to intercepting devices.
And the exception applies more narrowly
to a subset of those devices specifically.
-: And so you think it was purposeful
that the legislature limited itself
to 1960-era technology even though they were clairvoyant
about future technologies and the interception of those?
-: Well, there certainly have been technologies
that have developed since 1968 -: Clearly.
-: that would fall within the definition of a telephone.
I would concede, for example, that cellular telephones,
although they did not exist in 1968,
would qualify for the telephone exemption
if their other requirements of the exemption or met,
if it's in fact telephone equipment.
But even on that issue, the case law is clear.
And frankly, it's a little bit better developed
in the federal courts which construe,
if the language comes directly from the federal act,
it's not different,
that not all interceptions that involve telephones
necessarily qualify for the exemption.
Rather, the intercepting device itself
must be a form of telephone equipment
or some kind of infrastructure of the telephone system.
-: Are there any limiting principles?
'Cause I mean, if browsing is a communication
and any device, any software device
that tracks it is covered,
I mean, I'm just trying to understand this thing.
It's ust everybody's violating it.
I mean, I'm just trying to understand.
Is there a limiting principle here?
And what is it?
-: Well, focusing on what a communication is.
A communication at its core is an interaction
between two parties.
It's an exchange of information between two parties.
And even on what the defendants call informational
or parts of the website, when you interact with the website,
when you click on a link,
you're requesting information on a topic.
And then the business through the website
is responding to your request
by providing that information.
-: Well, the business isn't doing anything.
The business could be asleep, right?
The business just has a website that is already set up
with information on it that people can access.
Correct?
-: The website, though, is set up by people, right?
-: Well, the website is set up by people.
And I disagree that the business
has to have some kind of consciousness
in the human sense of consciousness,
you know, awareness of the communication
for it to be a communication.
-: At least have to be a two-way communication?
It doesn't have to be a two-way communication?
I mean, you're communicating.
I understand your client is communicating information
to Beth Israel Deaconess.
But if they don't respond back, is that a communication?
I'm just trying to understand that.
-: Well, in general,
unless the website is down or not functioning,
the business does respond back through the website.
The website user requests information,
and the website responds to that
by providing the information requested.
-: So does it have to be a return?
Literally, I mean, it could be AI.
But does there have to be something coming back
from Beth Israel?
Or is it just anytime you start browsing, you're covered?
-: Well, I think anytime you're browsing
and you're clicking on links and requesting information
and the website is loading successfully,
the response is a communication.
It is an interaction.
-: So I wanna find out what the hours of operation
of a gift shop are, and I go on the website,
that's a communication?
-: If you're requesting information from the business
and the business is responding,
that would be a communication.
-: Is that a conversation too?
-: Is it a conversation?
I believe it would be.
-: Okay, so they've posted the hours of operation.
'Cause I'm gonna go visit my mother,
I wanna see if I can buy her a plant.
What's the conversation?
-: The conversation is you have requested
from the business information about their business.
And the business has responded with that information.
-: Does communication have to be a conversation?
I guess I'm wondering, isn't a conversation,
the back and forth between two individuals,
a subset of communications which has a broader definition
of an exchange of ideas.
-: I agree with Your Honor that the word communication
is arguably broader than conversation.
And the operative provisions of the statute
use the word communication.
-: What do we do with our case law
that says it covers private conversations.
-: I think that the case law doesn't say it's limited
to private conversations.
In fact, several cases have rejected that proposition,
particularly when Your Honor used the word private,
that there's any limitations such as found
in other jurisdiction's wiretap laws
that there's some kind of reasonable expectation
of privacy requirement.
But setting that issue aside,
I agree that the operative provisions here
refer to communications.
And communications is a broader term,
particularly the term wire communications
which refers to transmissions
between points of origin and points of reception,
which is a concept that's broader than a conversation
and fits perfectly with what the internet is.
-: So this lawsuit is a little surprising, I think,
to most website developers and owners.
Is there a response, and I'll give you the opportunity,
to the idea that if you're right,
that this should be a prospective holding?
I didn't see it in your reply to the amici.
So I'm giving you the opportunity to do it here.
-: Yes, I think a core part of that response
is a recognition that
when the four superior court justices
that have upheld these claims,
they were not writing on a blank slate.
I think the most notable authority on that issue
is the First Circuit's decision in PharmaTrack.
And that decision is remarkable
that when you look at the facts of that case,
even before Google and Facebook were household names,
the technology at issue in PharmaTrack
was practically identical to the technology at issue.
-: But importantly, the statute was very different.
Was it not?
-: The federal statute in some respects is less protective
of privacy than the Massachusetts statute.
The Massachusetts statute imposes stricter regulation
on businesses than the federal law.
But the short answer is, is that from PharmaTrack forward,
which was in 2003, more than 20 years ago,
businesses were on notice that using these kinds
of tracking technologies on a website,
those technologies created communications
that fell within the scope of the Wiretap Law.
And importantly, even though that decision
is now 20 years ago, the republic has not failed.
Businesses have not gone outta business.
In fact, they've continued to use AdTech,
and most of them lawfully so.
In the defendant's own amicus,
the National Retail Federation
explains a large part about why that is,
about why the republic did not fail after PharmaTrack.
And that is that according to their own amicus,
the vast majority of website owners disclose the AdTech
and therefore do not face liability under the statute.
-: Can I ask about that?
So one of the arguments that opposing counsel makes is:
You know you're being monitored.
The cookies and the notice says,
"There's monitoring going on here by our third party."
They may be misrepresenting exactly what they're doing.
But this is not a case where you don't...
You know you're being eavesdropped on.
You know that this is being monitored.
They say it up front.
Do you have to identify everybody who's monitoring you?
I mean, this is not a surprise
that they are keeping track of this.
They say it right on the website.
-: I would respectfully disagree.
I think what they disclose on their website
is that their web server maintains logs.
-: No, I thought it was much more explicit than that.
It says that, "We are sharing this
"with our third party administrator for security
"and other purposes."
I mean, I've read the notice.
So you know you're being eavesdropped on.
-: I would respectfully reject the proposition that-
-: You're being monitored.
-: That that discloses any eavesdropping.
They recognize, as is true among many modern websites,
that websites are often hosted by third party providers.
-: Isn't the difference that the disclosure
says it's anonymous and in fact it isn't?
-: I think those allegations are significant.
But I think also the allegations are very specific.
There's a paragraph referring explicitly
to their recording of website activity.
And they state in very explicit terms,
"We will not share this information with outside parties."
It cannot be the case
under the secrecy prong of the statute
that when you have a statement like that in your policy
that frankly is a lie to consumers
about what they're doing with this data,
that that form of eavesdropping is non secret.
-: Well, it's contradictory, right?
Because it also says. "We share information with our,"
I think it says, "third party service providers"
or something like that.
It does say that, does it not?
-: Yes, but earlier in that same sentence,
it makes clear that what it's referring to are web servers.
So it's their third party web server providers.
So you can't just take a few words out of context.
The context of that is that they limit any recording
to their web server logs
whether that's the business itself
possessing the web servers or a third party.
And beyond that, they engage in no sharing
or permit no eavesdropping by any outside organizations,
which is a statement that's categorically false
and rendered the interception secret.
-: If it's okay, could I just ask you to respond
to something we were discussing earlier,
which is the what I'll call the paragraph 10 issue?
I just wanna give you a chance to respond to the concern
that your brief discusses a whole variety of different kinds
of ways that the wiretap app could be violated
in these just general realm.
But then paragraph 10 for this plaintiff
only alleges certain kinds of actions
that she took with respect to the website
and does not address, for example, filling out forms
requesting an appointment and so forth.
So can you respond to Justice Gaziano's question
about, you know, is this an all or nothing question?
And I'm not asking about standing.
This is separate from that.
-: Yes, so I do recognize that in our complaint,
we describe our plaintiff's interaction with the website
in fairly general terms in part.
Remember, the object of this lawsuit is to protect privacy.
So we did not want to go through and disclose
her medical conditions in a publicly filed complaint.
But we do describe,
and I'm referring to the Beth Israel complaint,
paragraph 10 in particular,
how she used the website to quote, "search for information
"on particular symptoms, conditions and medical procedures,"
close quote, and how she also uses the website
to obtain medical records.
And I agree that there are additional examples
that we give just in defining and explaining
our class claims in our complaint
that are additional categories of pages that are on the page
that the tracking technologies were also on.
And we're not saying our plaintiff
visited every page on the website.
But it certainly meets a notice pleading standard
informing them of the conduct.
And per my argument-
-: You're not arguing the medical records information
was transferred to a third party, right?
I thought that that's clearly not the case.
That's a different part of the website.
-: The substance of the medical records
does not appear, based on our current investigation,
that that was intercepted.
Although I do have to admit that the degree
to which any tracking technologies
may have been used earlier in the class period
within the patient portal is a fact we don't know
one way or the other.
I agree, we don't affirmatively allege it,
but that there's no way after the fact
to go back and recreate it.
Just the nature of what versions of webpages are archived
and which are not.
-: So going forward, anybody who goes online,
as long as it's disclosed, they won't violate the statute.
But there's not gonna be any chance to opt out, right?
I mean, it's disclosed and that's the end of it.
-: I agree that under the Massachusetts act in particular,
that the way the secrecy element reads,
it does not require affirmative consent.
A person can effectively deny consent
by stopping using the website.
But if a website owner discloses in clear terms
the technologies and the interceptions they create,
then there would be no violation.
-: [Chief Justice Budd] Okay.
-: Unless anyone has any further questions,
I see my time has expired.
(no audio)