## Facts

- Pharmatrak provided “NETcompare,” an online tracking service used by pharmaceutical companies to measure and compare traffic to their websites.
- Pharmatrak placed code and related tracking mechanisms on participating websites that collected detailed information about users’ visits.
- Although defendants claimed they did not intend to collect personally identifiable information (PII), the system captured user-submitted data, including names, email addresses, and potentially sensitive medical or prescription-related information.
- The data passed through and was stored on Pharmatrak’s computers as part of the web communication process.
- Website privacy policies generally represented that PII would not be collected without consent and suggested limits on third-party collection.
- Users alleged they did not know about the tracking and did not consent to interception or acquisition of the contents of their electronic communications.
- The district court granted summary judgment to defendants on the federal Wiretap Act claim; plaintiffs appealed.

## Issues

1. Whether Pharmatrak’s tracking constituted an “interception” of the “contents” of electronic communications under the Wiretap Act.
2. Whether the Wiretap Act’s consent exception barred liability based on user consent or consent by the pharmaceutical companies as parties to the communications.
3. Whether the “ordinary course of business” exception applied to Pharmatrak’s acquisition of communication contents.
4. Whether summary judgment was proper given disputes about what was captured, what was authorized, and what users were led to expect.

## Decision

- The First Circuit reversed the grant of summary judgment for defendants on the Wiretap Act claim and remanded.
- The court concluded the record supported that Pharmatrak acquired the contents of electronic communications during transmission, satisfying the statutory concept of interception.
- The court held that material fact disputes remained regarding consent and the scope of any authorization given to Pharmatrak.
- The court rejected resolving the ordinary-course-of-business defense on summary judgment, viewing the exception as narrow and not clearly satisfied by marketing/analytics-driven tracking.

## Legal Principles

- “Interception” under the Wiretap Act includes acquiring electronic communication contents through a device while the communication is in transit, including acquisition occurring as part of transmission routing.
- “Contents” includes information concerning the substance or meaning of a communication; user-entered data transmitted via web forms and URLs containing query strings may qualify as contents, not merely addressing or routing data.
- The consent exception requires actual consent (express or implied) and is not lightly inferred; representations in privacy policies that deny or limit third-party collection can defeat an assertion of informed consent.
- Consent by a party to the communication must match the scope of the challenged acquisition; disputed evidence about what the website operators intended or authorized can preclude summary judgment.
- The ordinary-course-of-business exception is limited to conduct closely connected to providing the communication service; it does not automatically cover broad collection of content for analytics or marketing purposes.
- Summary judgment is improper where affirmative defenses such as consent and statutory exceptions depend on disputed facts and the defendants have not established them as a matter of law.

## Conclusion

The First Circuit held that third-party web-tracking could amount to interception of the contents of electronic communications under the Wiretap Act and that defendants were not entitled to summary judgment because consent and statutory exceptions turned on unresolved factual questions, requiring further proceedings on remand.


In re Pharmatrak, Inc., 329 F.3d 9 (1st Cir. 2003)