Tort – ECPA – Crime-tort exception

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Where a plaintiff has brought a putative class action against a defendant hospital under the Electronic Communications Privacy Act (18 U.S.C. §§2510-2523), the complaint should be dismissed because it does not assert facts sufficient to support the inference that the defendant intended to commit a criminal or tortious act or that disclosing private medical information to third parties was the “primary motivation” or a “determinative factor” in the defendant’s decision to record health care consumers’ communications using tracking technologies.

“The ECPA prohibits any person from intentionally intercepting, endeavoring to intercept, or procuring any other person to intercept or endeavor to intercept any wire, oral, or electronic communication. … A party can generally avoid liability under the ECPA if they are ‘a party to the [intercepted] communication,’ … unless, under what is known as the crime-tort exception, the ‘communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.’ …

“The parties’ dispute as concerns the ECPA turns on whether the crime-tort exception applies. Plaintiff argues that Tufts Medical Center is liable under the ECPA because the crime-tort exception applies to its conduct implicating, most particularly, the Health Insurance Portability and Accountability Act (‘HIPAA’). … Tufts Medical Center argues the opposite. …

“The crime-tort exception’s ‘purpose’ language requires Plaintiff to plausibly allege that Tufts Medical Center ‘inten[ded] to commit a criminal or tortious act’ and that committing such a criminal or tortious act was its ‘primary motivation’ or a ‘determinative factor’ in its decision to intercept health care consumers’ communications. … Here, the Amended Complaint does not assert facts sufficient to support the inference that Tufts Medical Center intended to commit a criminal or tortious act or that disclosing private medical information to third parties was the ‘primary motivation’ or a ‘determinative factor’ in Tufts Medical Center’s decision to record health care consumers’ communications using various tracking technologies. …

“In sum, because the Amended Complaint fails to plausibly allege that Tufts Medical Center’s ‘intent to commit a criminal or tortious act’ was its ‘primary motivation’ or a ‘determinative factor’ in its decision to record health care consumers’ communications, … Plaintiff’s ECPA claim fails, and Count I is dismissed.”

McManus v. Tufts Medical Center, Inc. (Lawyers Weekly No. 02-542-25) (8 pages) (Burroughs, J.) (Civil Action No. 25-cv-10008-ADB) (Sept. 29, 2025).

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