Disclaimer: Freshpaint does not provide legal advice and this blog does not provide legal guidance or analysis. Organizations should consult qualified legal and privacy professionals about their specific circumstances.

There’s a John Mulaney skit that I love where he talks about being a kid with anxiety only to grow up to find out that the things he was stressed out about weren’t issues in adult life at all. Like the prevalence of quicksand. 

While I didn’t lay awake worrying about suddenly encountering quicksand as a child, I have laid awake thinking about wiretapping more than I’d like to admit. 

If you’re a healthcare marketer or privacy leader wondering how wiretapping has become such a big source of friction in our day-to-day lives, you’re not alone and this blog is for you. I’ll break down a little bit of the history of wiretapping claims dating back to the Prohibition Era, how plaintiffs connect wiretapping to pixel technology today, and best practices for healthcare organizations to prevent and defend against these types of claims.

How Illegal Liquor and Gambling Businesses Helped Define Wiretapping and Privacy Protections in the U.S.

I’m willing to go out on a limb and say that most healthcare marketers find themselves wondering: why is marketing being accused of wiretapping? We’re not sneaking around tapping telegrams after all. We’re running websites and ads so that individuals can find and access care or health insurance. 

Let’s unpack a little bit of how we got here. 

In 1890, the rise of sensationalized journalism and the growing popularity of instant photography challenged people’s privacy. So much so that two lawyers, Louis Brandeis and Samuel D. Warren II, published a law review article titled “The Right to Privacy” in the Harvard Law Review. They argued that common law should protect one’s right “to be let alone,” and that existing protections weren’t enough to shield private thoughts, sentiments, and personal lives from intrusion caused by fast-advancing technology. Can you imagine what Brandeis and Warren would think of Meta Glasses?

Later, in 1928, agents from the Federal Prohibition Bureau believed that Roy Olmstead was operating an illegal liquor business during the Prohibition Era. Without a warrant, federal agents wiretapped the phone lines that fed into Olmstead’s office and home and his alleged accomplices. Using these wiretaps, agents were able to uncover evidence of Olmstead selling liquor and arrested him.

Olmstead’s case made its way to the Supreme Court, where justices ruled 5-4 that the government’s use of wiretaps had not violated Olmstead’s Fourth Amendment, which protects people from warrantless searches and seizures by the government. However, Justice Louis Brandeis – yes, the same lawyer from the Harvard Law Review article – disagreed and wrote one of the most influential dissents in our country’s legal history. 

Brandeis wrote in his dissent that the makers of the United States Constitution “sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone – the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”

While this dissent didn’t help Roy Olmstead, Brandeis’ privacy beliefs did help Charles Katz in 1967 who faced charges of illegal gambling. Referencing Brandeis’ famous law review article and dissent, the US Supreme Court ruled 7-1 that the fourth amendment protects people, not just physical places, and that warrantless electronic wiretapping of a public telephone booth violated the right to privacy. 

As lawmakers enacted more wiretapping protections across the country, they intended to protect consumers from the recording of audio and phone conversations. As such, defendants argue that these laws, many of which were written between 1960-1980 before the HTTP cookie was developed, weren’t meant to reach tracking technologies. 

But, unfortunately for healthcare organizations and marketers, that hasn’t prevented plaintiffs from leveraging wiretapping theories to make privacy claims, and it hasn’t created a consistent response from the courts.

A Non-Lawyer’s Breakdown of Today’s Pixel Wiretapping Claims

I’m famously not a lawyer, but having developed privacy design strategies for wiretapping, I’ve grown quite familiar with the common theories behind these claims. Especially when there’s been almost 6,000 wiretapping complaints filed since 2022 – and thousands of pre-litigation demands.

Generally speaking, plaintiffs argue that standard advertising and analytics tracking technologies, including tools like session replay and chat experiences, on a website can act as illegal eavesdropping devices by secretly collecting or “intercepting” and sharing user activity with third parties without proper consent or beyond what a consumer may reasonably expect. When it comes to healthcare websites, where sensitive or protected health information may be processed and transmitted, that argument becomes much more interesting to plaintiffs and to courts, who remain divided on how wiretapping may apply to the internet. 

While courts are split over wiretapping’s applicability to the internet, plaintiffs continue to pursue these theories, even as California has taken steps to slightly narrow its state wiretapping law, the California Invasion of Privacy Act (CIPA). Even in the absence of legal liability, organizations find themselves spending significant cash to understand, defend, and prevent these claims and their brands. 

Best Practices for Healthcare Marketers Can Use Against Wiretapping 

Healthcare organizations that seek to prevent or defend similar wiretapping claims typically share several practices:

1. Opt-in consent: Consent preferences are enforced before non-essential tracking is triggered, including trackers operating natively outside Freshpaint. An opt-in consent model can provide more affirmative consent for data processing and can strengthen an organization's privacy posture. All Freshpaint customers have access to Freshpaint Consent Manager. 
2. Proactive monitoring: Tracker behavior is monitored continuously, and unwanted trackers are removed or replaced as identified. Freshpaint customers receive a weekly Web Tracker Monitor Report that gives a clear view into the trackers that are live on your site and allows you to coordinate privacy efforts around them. Use that report to identify, remove, or replace unwanted tracking technologies and to record your decisions around tracking technology. 
3. Server-side delivery: Server-side event forwarding and a custom first-party subdomain are used where available to reduce client-side third-party network surface area. 
4. Data minimization: Data allowlists are leveraged to protect sensitive information and to minimize what is shared with unbound third-party destinations (e.g., not allowing the full URL to be shared). 
5. Accurate policies: Privacy policies are kept current and accurately reflect actual data, marketing, and analytics practices.

Stay on Solid Ground as Privacy Rules Shift

John Mulaney joked that ‘80s and ‘90s cartoons made him think he’d need constant vigilance against quicksand as an adult, as it would obviously present as a perpetual danger. His head-on-a-swivel spirit, though, is one healthcare marketers have had to adapt over the last few years. Wiretapping claims dating back to the Gilded Age, a growing state-by-state data privacy puzzle, HIPAA (as always), and evolving regulatory changes continue to keep us on our toes.

It helps to have a leader in privacy-first healthcare marketing in your corner at times like these.

Freshpaint is here to make sure you don’t accidentally step into (privacy) quicksand. A good starting point is making sure you have a handle on unknown web-tracking risks.