According to a recent decision from a federal district court in Illinois, Bose Corp. may monitor and collect information about the music and audio files consumers choose to play through its wireless products and transmit that information to third parties without the consumers’ knowledge. Such action does not violate the federal Wiretap Act or the Illinois Eavesdropping Statute. As such, the Court granted Bose’s motion to dismiss the plaintiff’s class action claims.
Bose manufactures and sells high-end wireless headphones and speakers. Consumers use the wireless headphones or speakers with their smartphones to listen to music streamed to their phone from music-streaming services. Users of certain models of Bose wireless headphones and speakers can access additional features of those products by downloading the Bose Connect App. Once downloaded, the App enables users to connect their smartphones to their Bose Wireless Products via a Bluetooth connection so that the user can access and control the products’ settings and features through the App. The App also displays the track title, artist, and album playing.
According to the Plaintiff, Bose designed the App to “(i) collect and record titles of the music and audio files consumers choose to play through their Bose wireless products and (ii) transmit such data along with other personal identifiers to a third-party data miner without consumers’ knowledge or consent.” Plaintiff alleged that Bose was not a party to the communication of the music information, but rather “intercepted” the contents of the communication between the user and the streaming services. Plaintiff further alleged that Bose did not have consent from either party to intercept the data.
For a customer using the App, Bose could access the data referenced above, link the music information to the particular Bose product’s serial number, identify the name and email address for the particular user, and in the process build detailed profile about the customer and his or her music listening habits.
The statutes at issue in the case prohibit intentionally intercepting or disclosing an electronic communication unless the interception is by a party to the communication or where one of the parties has given prior consent. The Court ruled that the complaint failed to sufficiently allege that Bose is not a party to the communication. The Court supported its analysis by noting that the complaint itself states that the Bose App is a participant in the communication of the information when it sends a user’s request for a song to the streaming service and in turn displays the provider’s song information on the App. Indeed, the court noted, that the display of such information is one of the primary functions of the App. Thus, the court concluded, Bose “is a part of the listener to streaming service communication.” Although the court notes that Plaintiff’s real issue may be the fact that Bose collects and discloses information it receives to third parties, the conduct falls outside both the federal Wiretap Act and the Illinois law as well. As such, the court dismissed these claims.
With the ever increasing reliance on wireless technology and businesses combing for as much data as possible to target consumers, companies collecting personal data need to be aware of how that data is collected and what steps are being taken to protect it. While Bose escaped liability for the Wiretap Act and the Illinois Eavesdropping Law, the future likely involves more consumers monitoring how their data is gathered, as well as a corresponding increase in regulation over the collection and protection of personal data, such as the California Consumer Privacy Act set to take effect in 2020, and other state consumer privacy initiatives popping up across the country.