Mass. Health Commissioner Moves to Dismiss COVID-19-Based Privacy Action

Massachusetts Department of Public Health Commissioner Margaret Cooke moved to dismiss a November privacy class action complaint involving the state's COVID-19 exposure notification system, said a Monday filing (docket 3:22-cv-11936) in U.S. District Court for Massachusetts in Springfield. Plaintiffs Robert Wright and Johnny Kula alleged the Massachusetts Department of Health “secretly installed” an exposure notification settings feature on Android devices that would alert users who may have been exposed to COVID-19. Cooke said plaintiffs’ complaint and supporting materials that the system allows the department to track their locations without their consent asserts “a host of groundless claims" under federal and state law that “do not support their narrative.” The exposure notification system is "an optional, anonymous service that does not collect information," she said. Plaintiffs’ claim that installation of the feature was an “unreasonable search” isn't a plausible allegation, she said. The complaint doesn't allege facts about plaintiffs’ claimed property interest in digital storage, nor does a claim plead the necessary elements of a civil action under the Computer Fraud and Abuse Act, the motion said. Massachusetts’ 11th amendment immunity bars all of the plaintiffs’ claims against the department, the commission and claims for monetary damages, the motion said.