Another recent federal court decision endorsed the “heightened intent requirement” for satisfying the crime-tort exception of the federal Wiretap Act.  Progin v. UMass Mem’l Health Care, Inc., 2026 WL 632770, at *4–5 (D. Mass. Mar. 6, 2026).

In Progin, the plaintiffs claimed that the defendants, healthcare and hospital entities, embedded pixel technologies on their website and patient portal that transmitted information about the plaintiffs’ interactions to third-party companies.  The plaintiffs, patients of the defendants, asserted that these technologies revealed their protected health information, in violation of the Health Insurance Portability and Accountability Act (“HIPAA”).  The plaintiffs brought claims under the federal Wiretap Act.  To avoid the application of the Wiretap Act’s party-exception, the plaintiffs argued that the defendants intercepted and disclosed their communications for the criminal and tortious purpose of violating HIPAA.

The court dismissed the Wiretap claim, holding that the complaint failed to plead sufficient facts to satisfy the heightened intent requirement of the crime-tort exception.  The court reasoned that “[a]lthough the allegations may support the inference that Defendants purposefully committed certain acts, such as the installation of the at-issue tracking tools or even the disclosure of certain forms of information to [third parties], they do not support the inference that Defendants purposefully committed the ‘criminal and tortious acts’ specified by Plaintiffs.”  Id. at *5.  The court explained that it “is not enough to allege that Defendants knowingly committed” criminal or tortious acts.  Id. at *4.  Nor is it sufficient that “a crime or tort may have been a side-effect of the interception.”  Id. at *5.    

This Massachusetts federal court decision reinforces the high pleading bar for the Wiretap Act’s crime-tort exception.