Illinois

Good Vibrations

** Class Plaintiff not Feeling Data Collection Practices of Intimate Personal Consumer Products Maker **                                                                                                                                                                                                                                                                                              _

Digital Data Privacy Protection Searching Concept

In the “You Can’t Make This Stuff Up” file is the putative class action filed on September 2, 2016 against Standard Innovation (U.S.) Corp. in the U.S. District Court for the Northern District of Illinois.  N.P. v. Standard Innovation (US) Corp. d/b/a We-Vibe, Case No. 1:16-cv-08655, (N.D. Ill. Sept. 2, 2016). According to the complaint, Standard Innovation “is a ‘sensual lifestyle products’ company that sells a high-end vibrator called the We-Vibe.”  The We-Vibe distinguishes itself from its competitors in the marketplace by its smart phone application – “We-Connect,” which can be downloaded from Apple App and Google Play stores.  Why would one care to download such an application?  According to the complaint, “With We-Connect, users can ‘pair’ their smartphone to the We-Vibe, allowing them — and their partners — remote control over the vibrator’s customizable settings and features” – bringing a whole new meaning to the phrase, “phone sex.”  For those who like to teeter on the cutting edge, this technology is referred to as “teledildonics.”  — Seriously.

The problem?  According to the complaint, “Unbeknownst to its customers . . . Defendant designed We-Connect to (i) collect and record highly intimate and sensitive data regarding consumers’ personal We-Vibe use, including the date and time of each use and the selected vibration settings, and (ii) transmit such usage data — along with the user’s personal email address—to its servers in Canada.”  While Americans may be jaded to the systematic gathering and exploitation of their personal information by internet companies for marketing purposes, this case asks the question: “Is our choice of the ‘pulse,’ ‘wave,’ ‘echo,’ ‘tide,’ ‘crest,’ ‘bounce,’ ‘surf,’ ‘peak,’ or ‘cha cha cha’ settings of our ‘sensual lifestyle products’ anybody’s business but our own (and our digital partner’s)?”

The complaint alleges causes of action for violation of the federal Wiretap Act, 18 U.S.C. § 2510, et seq.; the Illinois Eavesdropping Statute, 720 ILCS 5/14-1 et seq.; the common law tort of intrusion upon seclusion; and violation of the Illinois Consumer Fraud and Deceptive Business Practice Act,815 ILCS 505/1 et seq.  The eavesdropping claims are premised on the allegation that “Defendant designed and programmed We-Connect to continuously and contemporaneously intercept and monitor the contents of electronic communications that customers send to their We-Vibe devices from their smartphones, such as operational instructions regarding the users’ desired vibration intensity level and desired vibration ‘mode’ or pattern.”  In other words, Standard Innovation intercepts communications between a user’s cell phone and his or her vibrator.  Plaintiff’s consumer fraud claim arises from the “connect lover” feature of We-Connect that allows “partners [to] exchange text messages, engage in video chats, and . . . control a paired We-Vibe device.”  When a device user initiates a We-Connect session, the screen encourages: “Connect and share control of your We-Vibe from anywhere.  Create a secure connection between your smartphones.”  The complaint alleges that this screen lulls the user into a false sense of security and fails to disclose Standard Innovation’s data collection practices.

The collection of personal data transmitted between devices through an application and representations regarding user privacy make this a “sexy” case – and one to watch.

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Lawyers Don’t Always Win

** Purported Class of Lawyers Suing for Misappropriation of Image and Likeness Fails at First Hurdle  **                                                                                                                                                                                                                                                                                                                                                                                                                       crsfkvk5jmarrd3ls7emnw-avvo_logo-color_blue_taglineBucking the popular notion that the legal system protects its own – a recent putative class action in Illinois bought by and for a class of lawyers – failed.  Vrdolyak v. Avvo, Inc., No. 16 C 2833, 2016 WL 4765716, at *1 (N.D. Ill. Sept. 12, 2016).  The defendant in the lawsuit,  Avvo.com, publishes a directory that includes “profile pages” for millions of U.S. attorneys.   Most lawyers, however, have never asked avvo.com to create profile pages for them – let alone had any input into them (or even know they exist) – rather the machine generated profiles are created using data gleaned from public records such as bar admissions and court records.  The generated “profile page” contains identifying information and a rating calculated by an algorithm (which, rather crudely, primarily uses the number of years in practice as its measure).  But some lawyers purchase from avvo.com special “sponsored listings” which promote their avvo.com profile above the unwashed mass.  It appears that avvo.com’s business model relies on its critical mass of (involuntary) profiles and the ability to allow lawyers willing to pay a fee, to appear more prominently (i.e. what Google does!).  Plaintiff John Vrdolyak (a University of Chicago law school graduate) cried foul.  He claimed that his identity (and that of every other involuntarily avvo.com profiled lawyer) was misappropriated for commercial purposes without consent in violation of the Illinois Right of Publicity Act (“IRPA”), 765 ILCS 1075/1 et seq.

The Court sided with avvo.com – agreeing with its argument that the profile pages were speech that is fully protected by the First Amendment.  The court reasoned that what avvo.com does is akin to a yellow pages directory, which receives First Amendment protection.  Dex Media West, Inc. v. City of Seattle, 696 F.3d 952, 962 (9th Cir. 2012) (concluding that publications like yellow pages directories and newspapers receive full First Amendment protection because, as a threshold matter, they do not constitute commercial speech.)  The Court also analogized the avvo.com profiles to those of a magazine, like Sports Illustrated, that publishes non-commercial information (i.e. articles about athletes) and sells and places advertisements within and around that information.  The articles are fully protected non-commercial speech – the advertisements are (less protected) commercial speech.  In this case the “Sponsored Listings” were the commercial speech – but they were authorized and not at issue.  Those profiles that were at issue – the unauthorized profiles – were protected speech and their placement with the sponsored listing did not convert the entire website into commercial speech – the court opined.  Gallingly, the court not only refused to side with the lawyers – but used the Constitution to do so.

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