The chief executive officer (CEO) of a software company has publicly challenged a lawsuit brought by class action plaintiffs on October 24, who allege that the company, an application developer, and the Indianapolis Colts “systematically and surreptitiously” intercepted their oral communications at football games in violation of the Electronic Communications Privacy Act (ECPA).
Rodney Williams, the CEO of Lisnr, said last month that the application, developed by co-defendant Yinzcam, does not record conversations, as alleged, but instead offers an interactive experience, delivering scores, news, and other information to fans attending the game.
Lead Plaintiff Alan Rackemann claimed in a lawsuit that the application uses beacon technology, “a novel method to track consumers and how they interact with marketing and advertisements. … (The software) allows the Colts to target specific customers and send them tailored content, promotions, or advertisements based on their location.”
The plaintiffs further alleged that the application “determines a consumer’s precise location by secretly activating (his or her) smartphone’s built-in microphone and listening for nearby Lisnr audio beacons. With the microphone activated, the application listens to and records all audio within range — including consumer conversations.”
They added that because the industry considers beacon technology “inherently invasive,” consumers must opt-in to the use of the technology. The plaintiffs contend that “Lisnr involuntarily enlists thousands of sports fans that have downloaded and installed apps from their favorite teams.
“Unfortunately for consumers, defendants never inform them that their smartphones are being turned into listening devices, nor do they ever seek consent,” according to the lawsuit. In sum, they allege that consumers were not given adequate notice of, or opportunity to opt-out of the functionality.
The plaintiffs are seeking to prevent the continued “listening and recording” as well as “statutory and punitive damages” for violation of the ECPA.
Lawyers Examine Litigation Involving Warriors
Preceding the Law suit involving the Colts was a similar lawsuit involving the Golden State Warriors
Kimberly Buffington and Carolyn S. Toto, attorneys at Pillsbury Winthrop Shaw Pittman LLP, examined the lawsuit which pits LaTisha Satchell against the Golden State Warriors, the first NBA franchise employing such an app; Signal360, the licensor of the relevant technology; and the aforementioned Yinzcam.
The attorneys summarize the allegations as follows:
“In 2014, in furtherance of its desire to remain a technological leader among NBA organizations, Golden State partnered with Defendant Signal360 to integrate Signal360’s beacon technology. Beacons are a novel method to track consumers and how they interact with marketing and advertisements. For instance, with beacons, advertisers might be able to discern when a consumer is looking at a specific billboard—something previously unprecedented. With the App, Signal360’s software allows Golden State to target specific consumers and send them tailored content, promotions, or advertisements based on their location.
The App determines a consumer’s precise location by listening for nearby Signal 360 audio beacons by (secretly) activating a consumer’s smartphone’s built-in microphone (“Microphone”). With the Microphone activated, the App listens to and records all audio within range—including consumer conversations. If the App “hears” one of Signal360’s beacons it may display an ad to the consumer or simply send that information to Signal360.
Even more disconcerting, the App turns on the Microphone (listening in and recording) any time the App is running. No matter if a consumer is actively using the App or if it is merely running in the background: The App is listening.”
In their analysis, they wrote:
“The Satchell case remains in the pleading stages and as such it is still too early to evaluate the merits of this complaint. If, however, the intercepting and recording of oral communications allegations without consent are proven to be true, such actions would constitute serious violations of the ECPA. In addition to the legal implications, it will be interesting to see how fans react to this news. Some may care enough to stop using the app. However, one-click purchasing and the camaraderie of sharing on social media seems to have forever raised the tolerance for what consumers are willing to disclose with their mobile devices; for many, the allure of convenience and community outweigh privacy concerns.”
