In today’s day and age, most electronics have features that can store – and potentially distribute – information about the consumer. We readily share our locations on social media, save our financial information on banking apps, bookmark our internet browsing history, and store our various usernames and passwords to our mobile devices for future use. While the security measures of such electronic storage are never fail safe, many consumers feel comfortable enough to save their personal information to their devices if they feel they are in control of its dissemination. But what about when a device shares your information without your knowledge and consent? That is what one group of consumers is alleging that the electronics company, Bose, has done with its line of products.
What Information is Bose Allegedly Collecting?
A class action lawsuit against Bose, a company that specializes in audio equipment and electronics, alleges that the consumer electronics giant is illegally collecting their customers’ data through their headphone and speaker lines. The complaint, filed in Illinois federal court, alleges that Bose violated provisions of the Federal Wiretap Act, which prohibits the intentional interception and disclosure of electronic communications. Specifically, some of Bose’s headphones and speakers, which include the Quiet Comfort 35, Sound Sport Wireless, Sound Sport Pulse Wireless, Quiet Control 30, Sound Link Around-Ear Wireless Headphones II, and Sound Link Color II, enable customers to remotely control the devices from their smartphones. The feature must be downloaded and installed onto the smartphone in order to use it. Once installed, the Bose Connect app allows customers to “pair” the Bose devices to their smartphones via Bluetooth technology. Once paired, the customers can manage and adjust the device’s settings, as well as play, pause, or share music between two Bose products.
The class action alleges that this pairing feature is not innocuous and was designed for the purpose of collecting consumer data and passing along the information to third parties. As alleged in the complaint, Bose failed to notify its customers that it monitors and collects the music played through their Bose devices. Because customers must register for the app by providing their names, email addresses, and their product’s serial number, Bose is able to link the collected information to the customer and can create a profile about the listening habits of their users. The lawsuit points out that a customer’s audio selections – including music, radio broadcasts, podcasts, and lectures – can provide insight into the customer’s personal identity. The complaint alleges that religion, medical diagnoses, and sexual orientation can all be ascertained from a customer’s listening habits.
The complaint alleges that Bose designed the app to automatically disclose and transmit the user information to third party companies such as Segment.io, Inc., a data mining and analysis company. Plaintiffs contend that they never gave their consent to Bose to distribute their personal information and such dissemination was never disclosed to them. Bose has denied the allegations and claims that the company does not wiretap its customers’ communications or sells their information.
How Can the Experts Weigh in?
While Bose unequivocally denies the allegations, the Connect app’s latest license agreement may complicate the matter. The agreement states that Bose “may collect, transmit, and store” customer data on “servers operated by third parties on behalf of Bose.” Likewise, the app’s privacy policy states that Bose “may partner with certain third parties” to collect “non-personal information” and “to engage in analysis, auditing, research, and reporting.” However, the policy states that the app “is not used to create user profiles for behavioral advertising or similar purposes.” Whether Bose’s customers were aware of such data collection, and whether Bose adequately disclosed their practices, is going to be a major issue throughout the litigation. A failure to warn expert can be utilized to establish that Bose had a duty to warn its customers about the danger of their personal information being disseminated to a third party. Likewise, such an expert on the defense side may testify that Bose sufficiently disclosed its practices in its license agreement and privacy policy, and that no harm was proximately caused by hidden dangers in Bose’s products. While not the typical failure to warn case as often seen in product liability litigation, a failure to warn expert can help establish the disclosure duties of the company and whether such disclosures were adequate.
In the same regard, a human factors expert can be useful for both parties to establish how consumers typically use Bose’s products. Human factors experts analyze how individuals interact with technology, taking into account the issues of perception, attention, memory, and risk. A human factors expert can explain an owner’s interactions with the product, and how those interactions may have affected how the product was used. Both the plaintiff and defendant can benefit from a human factors expert explaining how consumers use Bose products, particularly because an average jury might be unfamiliar with such technology.
In addition, the underlying technology of Bose’s products must be adequately explained to a jury in order to reach an informed verdict. An electrical engineering expert can testify to the structure and design of the Bose products, and how the Connect app interacts with both the product and the customer’s smartphone. Whether Bose illegally wiretapped their customers’ information is dependent upon whether an “electronic communication” existed as defined in the Federal Wiretap Act. Because Bluetooth “pairing” technology is relatively new, an electrical or software engineering expert can help establish the perimeters of what these products are capable of, and whether its capabilities fit within the definition of a communication that is protected by the Act.
As technology advances and our devices become more interdependent with one another by sharing, pairing, or otherwise connecting, our personal information also becomes susceptible to exposure. The Bose class action lawsuit may set precedent for how such data sharing is handled and is worth keeping an eye on as an informed consumer.
