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Court Clarifies Federal Wiretap Act’s Crime-Tort Exception: “Commercial Purposes” Are “Not the Stuff of Which a Crime-Tort Is Made”

By Austin Riddick & Matthew Verdin on August 22, 2025
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After last year’s landmark ruling holding that the Massachusetts Wiretap Act does not prohibit businesses’ use of pixels to capture website browsing data, Massachusetts plaintiffs have shifted their focus to the federal Wiretap Act.  The problem: unlike the Massachusetts Wiretap Act, its federal counterpart is a “one-party consent” law, meaning that a business’s consent to the use of the pixels is enough to preclude liability.  Last month, a federal court held that a “crime-tort exception” to this consent exemption does not apply when website browsing data is collected for “commercial purposes or advantages.”  Goulart v. Cape Cod Healthcare, Inc., 2025 WL 1745732 (D. Mass. June 24, 2025).

Plaintiffs Debra Goulart and Michael Garbitt each used Cape Cod Healthcare’s (“CCHC”) website to obtain medical care.  According to the Complaint, CCHC used various pixel tools to collect and share information about their website activity, including information about “the type of medical appointment the patient made, the date, and the specific doctor the patient was seeing.”  Since CCHC was a party to the plaintiffs’ alleged website communications with CCHC, there was no dispute that the one-party consent exemption facially applied.  However, the plaintiffs invoked a “carve-out”: “the crime-tort exception,” under which a party may still be liable when the communication is intercepted “for the purpose of committing any criminal or tortious act.” The Court held that the crime-tort exception did not apply because the plaintiffs failed to plausibly allege that CCHC’s “primary motivation” in disclosing plaintiffs’ information was to commit “a criminal violation or tort.”  Although the Court acknowledged that the “facts alleged by plaintiffs support[] the proposition that CCHC used the trackers for purposes of marketing and advertising,” the Court rejected these allegations as insufficient.  As the Court explained in dismissing the federal Wiretap Act claim, “commercial purposes or advantages” are “not the stuff of which a crime-tort is made.”

Austin Riddick

Austin Riddick is an associate in the firm’s Washington, DC office. He is a member of the Class Actions Practice Group where he represents clients in both state and federal courts. Austin represents companies in the technology, life science, consumer products, and financial…

Austin Riddick is an associate in the firm’s Washington, DC office. He is a member of the Class Actions Practice Group where he represents clients in both state and federal courts. Austin represents companies in the technology, life science, consumer products, and financial services industries. He has experience obtaining positive outcomes for clients through multiple phases of litigation, including drafting dispositive motions, discovery, preparing witnesses for interviews with opposing counsel, appeals, and settlement negotiations.

Austin also maintains an active pro bono practice focused on criminal justice and civil rights issues. He has led negotiations with the U.S. Attorney’s Office for the District of Columbia on behalf of a client with Brady claims that resulted in the client’s release from prison.

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Photo of Matthew Verdin Matthew Verdin

Matthew Verdin focuses on defending clients in the technology and financial services sectors. He has a strong record of delivering wins on behalf of clients in class actions and complex litigation, particularly in privacy and consumer protection lawsuits. Matthew is particularly successful in…

Matthew Verdin focuses on defending clients in the technology and financial services sectors. He has a strong record of delivering wins on behalf of clients in class actions and complex litigation, particularly in privacy and consumer protection lawsuits. Matthew is particularly successful in securing dismissals at the pleadings stage. For example, he won dismissal at the pleadings stage of over a dozen wiretapping class actions involving the alleged use of website analytics tools to collect data about users’ website visits. He also advises companies on managing litigation risk under federal and state wiretapping laws.

Matthew is also dedicated to pro bono legal services. Recently, he helped a domestic violence survivor win a case in the California Court of Appeal. Matthew’s oral argument led to the court ordering renewal of his client’s restraining order just one day later.

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  • Posted in:
    Privacy and Cybersecurity
  • Blog:
    Global Policy Watch
  • Organization:
    Covington & Burling LLP
  • Article: View Original Source

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