In 2013, Edward Snowden revealed the extent of surveillance that the American federal government was conducting on citizens by releasing documents to Wikileaks. Since then, people have become increasingly suspicious with regard to various entities, including companies, collecting data on them through various means. Most of the data collected by companies is relatively impersonal, such as how much time is spent on a company’s website or a person’s online purchases. However, occasionally, the information collected by companies can be quite private, the kind of information that some people would never dream of sharing with others.
One woman in Illinois recently discovered that the company Standard Innovation has been collecting data on her that she would never have shared knowingly. Standard Innovation manufactures and sells the We-Vibe sex toy, which can be controlled through using a smart phone app called We-Connect. Unbeknownst to the woman, and presumably many other customers, Standard Innovation was collecting data on its customers through the We-Connect app, including when and how the connected vibrator is being used. This was despite the fact that whenever one would use the app, a screen would show assuring that the connection through the app was a secure one. When the woman found out about the data collection that Standard Innovation was performing, she filed a lawsuit against the company.
Violation of Privacy?
Standard Innovation is accused of violating the Federal Wiretap Act and the Illinois Eavesdropping Act, as well as intruding upon customers’ seclusion, enjoying unjust enrichment, and engaging in consumer fraud. The Federal Wiretap Act and the Illinois Eavesdropping Act both prohibit individuals from intercepting electronic communications without the consent of the people who are sending and receiving the communication. Although the plaintiff insists that she never gave Standard Innovation permission to gather the data, consent may have been included in the user agreement for either the We-Vibe device or the We-Connect app.
Often, people agree to the user agreement without taking the time to actually read it. Not reading a user agreement does not make the user agreement invalid, as it is the responsibility of the user to read it before agreeing to. Similarly, the statement that the connection is secure does not necessarily mean that data was not being intercepted and transmitted if there was a previous user agreement that gave consent to the interception and transmission of the data. Thus, if there was a statement of consent to the collection of the data in the user agreement, then Standard Innovation may not have violated the Federal Wiretap Act or the Illinois Eavesdropping Act.
However, if there was not a statement in the user agreement giving consent to the interception of data and the statement of a secure connection led to users believing that their information was not being intercepted, then Standard Innovation most likely violated both the Federal Wiretap Act and the Illinois Eavesdropping Act for intercepting data that was being sent between the We-Connect app and the We-Vibe device.
By collecting the information about the use of the device, Standard Innovation is monitoring one aspect of the user’s sex life. A person’s sex life is something that most people would rather keep private and not share details of with companies. If a company were to pry into a person’s sex life without their permission, that action would qualify as intruding into a person’s reasonably expected privacy, or seclusion.
However, gathering data on a person’s sex life is not an intrusion upon a person’s seclusion if the person consents to sharing that information with the company that is gathering the data. It appears that it is impossible to avoid sharing data with Standard Innovation while using the We-Connect app in connection with the We-Vibe devices. If there is an agreement to disclose this information within a user agreement for either the We-Vibe device or the We-Connect app, then Standard Innovation is free to obtain the data from users without intruding upon their seclusion. However, if there is no agreement giving Standard Innovation permission to gather this data, then monitoring the We-Vibe and We-Connect users’ patterns of We-Vibe and We-Connect use is an inappropriate intrusion into their private sex lives.
Profiting From Illegal Activity?
In addition to invading the privacy of users by intercepting their communication to their device via the app, Standard Innovation is making a profit through the products that are collecting data from its customers. The We-Vibe device that can be used with the We-Connect app is more expensive than other vibrators made by Standard Innovation that do not have the ability to be controlled by a smart phone app. Thus, Standard Innovation is profiting off of an increased price of something that provides it the additional benefit of being able to gather data on their customers. If the company is doing this without the permission or knowledge of its customers and those customers would have purchased other devices if they had known about the information collection, then Standard Innovation would be unjustly enriching itself off of the additional profit that it would not have made if it informed its customers of the data collection that it was conducting via the app and the device.
While unjust enrichment is common law, Illinois has a law preventing companies from enjoying unjustly gained profits as a result of concealing important information from consumers called the Illinois Consumer Fraud Act (ICFA). Under this law, companies are prohibited from making money by engaging in unfair and deceptive trade practices, such as secretly collecting information through their products. If Standard Innovation did make an increased profit as a result of not informing its customers or obtaining the consent of its customers that it was collecting data on their use of the We-Vibe device and the We-Connect app, then the company also violated the Illinois Consumer Fraud Act.
However, whether Standard Innovation engaged in unjust enrichment or violated the Illinois Consumer Fraud Act depends on whether or not the customers using the We-Vibe device and the We-Connect app consented, knew, or should have known about the data collection. The woman bringing the lawsuit claims that she had no idea that Standard Innovation was doing this until recently, which prompted her to bring a class action lawsuit against the company. Thus, it is possible that many people who use the We-Connect app and We-Vibe device do not know that Standard Innovation intercepts information as it is being sent between the device and the app.
Even if these people did not actually know, they may still have given consent and/or should have known because Standard Innovation may have informed them of it and gotten consent through a user agreement, as mentioned above. As with the Federal Wiretap Act and the Illinois Eavesdropping Act, Standard Innovation will likely not be found to have engaged in unjust enrichment or be in violation of the Illinois Consumer Fraud Act if there was consent or at least an effort to inform customers of the information gathering through a user agreement or some other form of notification prior to a customer using the device and/or the app.
As a product user, it is your responsibility to read any user agreements or notifications that accompany a product, especially if that product is an app or some other tech product that relies on transmitting messages about you, such as your location or your exercise habits, to another item. However, you are still entitled to a reasonable amount of privacy and the right to be informed on any information that a company may be collecting on you. If you feel that your privacy or rights as a consumer have been violated and that violation resulted in a company making an increased profit, then you need to contact a defective products lawyer right away.
Authored by Kristen Johnson, LegalMatch Legal Writer