Privacy & Information Security Law Blog

The Supreme Judicial Court of Massachusetts, the state’s highest appellate court, recently held that website operators’ use of third-party tracking software, including Meta Pixel and Google Analytics, is not prohibited under the state’s Wiretap Act.

On October 31, 2023, the Department of Health and Human Services (“HHS”) announced the issuance of a settlement agreement with Doctors’ Management Services (“DMS”), a Massachusetts-based medical management company, related to alleged violations of the Health Insurance Portability and Accountability Act’s (“HIPAA’s”) Privacy and Security Rules (collectively, the “HIPAA Rules”). DMS is a HIPAA business associate (“BA”) that provides payer credentialing and medical billing services to HIPAA Covered Entities (“CEs”). 

On August 8, 2023, the Massachusetts Gaming Commission approved 205 CMR 257: Sports Wagering Data Privacy, a set of regulations designed to create new rights and obligations with respect to sports betting operators’ use of patrons’ Confidential Information or Personally Identifiable Information. The regulations took effect on September 1, 2023.

On March 2, 2022, eight states announced a bipartisan, nationwide investigation into whether TikTok operates in a way that causes or exacerbates harm to the physical and mental health of children, teens and young adults. The probe will further consider whether the company violated state consumer protection laws and put the public at risk.

On October 15, 2021, the U.S. District Court for the District of Massachusetts entered a final order approving a $14 million class action settlement resolving claims against HelloFresh for alleged violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq. The named plaintiffs alleged that HelloFresh violated the TCPA by (1) placing telemarketing calls to consumers whose phone numbers were listed on the federal Do Not Call registry; (2) placing telemarketing calls to consumers using an automatic telephone dialing system (“ATDS”) without prior express written consent; and (3) placing telemarketing calls to consumers who had requested to be placed on Hello Fresh’s internal Do Not Call list. According to plaintiffs’ attorneys, this settlement is the largest TCPA class action settlement in Massachusetts state history.

On January 10, 2019, Massachusetts Governor Charlie Baker signed legislation amending the state’s data breach law. The amendments take effect on April 11, 2019.

On April 4, 2017, the Massachusetts Attorney General’s office announced a settlement with Copley Advertising LLC (“Copley”) in a case involving geofencing.

On November 21, 2014, Massachusetts Attorney General Martha Coakley announced that Boston hospital Beth Israel Deaconess Medical Center (“BIDMC”) has agreed to pay a total of $100,000 to settle charges related to a data breach that affected the personal and protected health information of nearly 4,000 patients and employees.

On March 11, 2013, in Tyler v. Michaels Stores, Inc., the Massachusetts Supreme Judicial Court effectively reinstated the suit against the retailer by answering favorably for the plaintiff three certified questions from the United States District Court for the District of Massachusetts regarding Massachusetts General Laws Chapter 93, Section 105(a) entitled “Consumer Privacy in Commercial Transactions” (“Section 105(a)”). The court ruled that (1) a ZIP code constitutes personal identification information under the Massachusetts law; (2) a plaintiff may bring an action for a violation of the Massachusetts law absent identity fraud; and (3) the term “credit card transaction form” refers equally to electronic and paper transaction forms. The Massachusetts court’s determination that a ZIP code constitutes personal identification information is similar to the determination in Pineda v. Williams-Sonoma Stores, Inc., in which the California Supreme Court held that ZIP codes are “personal identification information” under California’s Song-Beverly Credit Card Act. More than 15 states, including Massachusetts and California, have statutes limiting the type of information that retailers can collect from customers.

On January 7, 2013, Massachusetts Attorney General Martha Coakley announced that several Massachusetts medical practices have agreed to a consent judgment and $140,000 payment to settle charges they improperly disposed of medical information. The defendants, which include several pathology practices and a firm that provided medical billing services to those practices, were accused of dumping hard copy medical records at the Georgetown Transfer Station, a waste management facility open to the public. The records allegedly contained the names, Social Security numbers and medical diagnoses of approximately 67,000 individuals. The illegal dumping allegations were publicized in a Boston Globe article after a photographer for the newspaper discovered medical records at the facility while he was disposing of his own trash.

On September 17, 2012, the Department of Health and Human Services (“HHS”) announced a $1.5 million settlement with the Massachusetts Eye and Ear Infirmary and Massachusetts Eye and Ear Associates Inc. (“MEEI”) for potential violations of the HIPAA Security Rule. In connection with the announcement, the HHS Office for Civil Rights (“OCR”) Director Leon Rodriguez stated that organizations should pay special attention to safeguarding information “stored and transported on portable devices such as laptops, tablets, and mobile phones” and that “compliance with the HIPAA Privacy and Security Rules must be prioritized by management and implemented throughout an organization, from top to bottom.”

On May 24, 2012, Massachusetts Attorney General Martha Coakley announced that South Shore Hospital agreed to a consent judgment and $750,000 payment to settle a lawsuit stemming from a data breach that occurred in February 2010. At that time, South Shore Hospital shipped several boxes of unencrypted back-up tapes to a service provider in Texas to erase them. The tapes contained the personal and protected health information of approximately 800,000 individuals, including names, Social Security numbers, financial account numbers and medical diagnoses. Several of the boxes went missing and have yet to be recovered, though there is no evidence that the information on the missing tapes has been misused.

On March 21, 2012, Massachusetts Attorney General Martha Coakley announced that Maloney Properties Inc. (“MPI”), a property management firm, executed an Assurance of Discontinuance and agreed to pay $15,000 in civil penalties following an October 2011 theft of an unencrypted company-issued laptop. The laptop contained personal information of more than 600 Massachusetts residents and was left in an employee’s car overnight. MPI has indicated that it has no evidence of unauthorized access to or use of the personal information in connection with this breach.

On January 6, 2012, the United States District Court for the District of Massachusetts granted Michaels Stores, Inc.’s (“Michaels”) a motion to dismiss against a customer-plaintiff who alleged that Michaels’ in-store information collection practices violated Massachusetts law. Although the court ruled in Michaels’ favor, it found that customer ZIP codes do constitute personal information under Massachusetts state law when collected in the context of a credit card transaction. 

On July 29, 2011, Massachusetts Attorney General Martha Coakley announced a $7,500 settlement with Belmont Savings Bank following a May 2011 data breach involving the names, Social Security numbers and account numbers of more than 13,000 Massachusetts residents.  The bank has stated that it has no evidence of unauthorized access to or use of consumers’ personal information in connection with this breach.

On March 28, 2011, the Briar Group, LLC, owner and operator of several Boston-area bars and restaurants, reached a settlement with Massachusetts Attorney General Martha Coakley regarding the breach of “tens of thousands” of consumers’ payment card information.  The settlement resolves a lawsuit filed in Massachusetts Superior Court alleging that in April 2009 hackers gained access to the Briar Group’s computer systems and misappropriated customer data by installing malcode which was not removed by the company until December of that year.  The complaint further alleged that the Briar Group’s lax data protection practices, such as allowing employees to share computer passwords and failing to secure network wireless connections, put customers’ personal information at risk.

After several delays and revisions, the Massachusetts information security regulations, entitled “Standards for the Protection of Personal Information of Residents of the Commonwealth,” will take effect on March 1, 2010. The regulations apply to entities that own or license personal information about Massachusetts residents. “Personal information” is defined as a combination of a resident’s first and last name and Social Security number, driver’s license or state ID number, or financial account number or payment card number that permits access to the individual’s financial account.

On October 30, as reported by the Bureau of National Affairs (“BNA”), the Massachusetts Office of Consumer Affairs and Business Regulation stated that final amendments to its information security regulations had been filed with the Massachusetts Secretary of State.  The Standards for the Protection of Personal Information of Residents of the Commonwealth have been the subject of much commentary and a series of amendments as regulators seek to address concerns expressed by businesses over the stringent and specific nature of the regulations.  The most recent round of amendments was announced August 17, 2009.

On August 17, 2009, Massachusetts announced revisions to its information security regulations and extended the deadline for compliance with those regulations.  In the press release announcing the revised regulations, the Undersecretary of the Massachusetts Office of Consumer Affairs and Business Regulation noted the concerns of small business leaders regarding the impact on their companies, stating that the updated regulations “feature a fair balance between consumer protections and business realities.”

Massachusetts recently announced that it is extending the deadline for compliance with new state data security regulations. In consideration of the current economic climate, Massachusetts has extended its original compliance deadline of January 1, 2009. The new compliance deadline will be phased in. By May 1, 2009, companies that are subject to the regulations must generally comply with the new standards and must contractually ensure the compliance of their third-party service providers. In addition, by May 1, 2009, covered businesses must encrypt laptops containing personal information. By January 1, 2010, companies are required to have a written certification of compliance from their third-party service providers and must encrypt other company portable devices, such as memory sticks and PDAs.