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The outcome : "The court dismissed Zak’s novel wiretap and eavesdropping claims, writing that the complaint failed to adequately allege that Bose is not a part

The outcome : "The court dismissed Zak’s novel wiretap and eavesdropping claims, writing that the complaint failed to adequately allege that Bose is not a party to communication, as is necessary for violations of these statutes. “ … [T]he relevant inquiry,” the court wrote, “is whether the defendant is a participant in the conversation, as opposed to a nonparticipant that uses other means to gain access to – i.e., intercept – the communication.” Bose wasn’t an intruding third party, so this line of attack was shut down. Nonetheless, the unjust enrichment and Illinois state consumer fraud charges survived. And, to make things a little more interesting for the defendant, the court left the door open for Zak to file again under the Wiretap Act if he could prove “that Bose is in fact not a party to the communication or that Bose, while a party, nevertheless intercepted a communication with the purpose of committing a crime or tort independent from the alleged interception.”" https://www.lexology.com/library/detail.aspx?g=5499bec3-8a87-4dc0-a010-dae6249a2932 https://www.lexology.com/library/detail.aspx?g=5499bec3-8a87...

zaroth 7y ago
Not an intruding party?! Well who the heck invited them to the conversation!! I was assuming it would be thrown out because they only collected metadata and if they didn’t pull full audio that they didn’t meet a required element. Luckily the wording implies that it’s not that the judge found from the evidence that they were an invited party, just that the claim failed to properly lay the foundation in their briefs? I hope they refile.
- davemp 7y ago
  It looks like the app only sent song selections so there's no "communication" in general. > The alleged eavesdropping would deliver user information – including song selections . . . [GP's source] --- Honestly I think it might be worth looking into the idea of metadata collection as eavesdropping. Unless there's an implicit technical requirement for data, the company should need to explicitly request it. For phone lines it's obvious why the service provider is party to the communications: caller --> switching equipment --> callee The bose situation is more: user --> bluetooth --> headphones | +--> bose Though this sort of ruling might just drive everything to an even more disgusting state of centralized services so that companies can claim an implicit technical need for data.
- JumpCrisscross 7y ago
  > the wording implies that it’s not that the judge found from the evidence that they were an invited party, just that the claim failed to properly lay the foundation in their briefs The Wiretap Act complaint has bigger problems. “‘Electronic communication’ is defined, in relevant part, as ‘any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce . . . .’ 18 U.S.C. § 2510(12)” [1]. It would be tough to claim the Bluetooth connection between the phone and headphones are engaged in interstate commerce. “Moreover, Zak’s Brief in Opposition to the Motion to Dismiss (‘Opposition Brief’) further clarifies the FAC’s allegations6 and makes clear that in fact ‘Bose Connect is part of the listener to music provider communication[,]’ indeed ‘the App is supposed to function as a leg in the listener-to-music provider communication pathway—one that can be used to request new material or view audio track information.’ (Opp. Br. at 7 n.5, 8.) The Opposition Brief further explains that ‘information is . . . routed to the App where track information—e.g. song name, album, and artist information—is displayed.’ (Id. at 1.) It is clear from the facts alleged in the FAC, and clarified in the Opposition Brief, that the App is in fact a known participant in—and intended recipient of—the communication of the Media Information.” [1] https://f.datasrvr.com/fr1/319/48563/Bose_Memo_and_Order.pdf https://f.datasrvr.com/fr1/319/48563/Bose_Memo_and_Order.pdf

zaroth 7y ago

Not an intruding party?! Well who the heck invited them to the conversation!! I was assuming it would be thrown out because they only collected metadata and if they didn’t pull full audio that they didn’t meet a required element. Luckily the wording implies that it’s not that the judge found from the evidence that they were an invited party, just that the claim failed to properly lay the foundation in their briefs? I hope they refile.

davemp 7y ago
It looks like the app only sent song selections so there's no "communication" in general. > The alleged eavesdropping would deliver user information – including song selections . . . [GP's source] --- Honestly I think it might be worth looking into the idea of metadata collection as eavesdropping. Unless there's an implicit technical requirement for data, the company should need to explicitly request it. For phone lines it's obvious why the service provider is party to the communications: caller --> switching equipment --> callee The bose situation is more: user --> bluetooth --> headphones | +--> bose Though this sort of ruling might just drive everything to an even more disgusting state of centralized services so that companies can claim an implicit technical need for data.
JumpCrisscross 7y ago
> the wording implies that it’s not that the judge found from the evidence that they were an invited party, just that the claim failed to properly lay the foundation in their briefs The Wiretap Act complaint has bigger problems. “‘Electronic communication’ is defined, in relevant part, as ‘any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce . . . .’ 18 U.S.C. § 2510(12)” [1]. It would be tough to claim the Bluetooth connection between the phone and headphones are engaged in interstate commerce. “Moreover, Zak’s Brief in Opposition to the Motion to Dismiss (‘Opposition Brief’) further clarifies the FAC’s allegations6 and makes clear that in fact ‘Bose Connect is part of the listener to music provider communication[,]’ indeed ‘the App is supposed to function as a leg in the listener-to-music provider communication pathway—one that can be used to request new material or view audio track information.’ (Opp. Br. at 7 n.5, 8.) The Opposition Brief further explains that ‘information is . . . routed to the App where track information—e.g. song name, album, and artist information—is displayed.’ (Id. at 1.) It is clear from the facts alleged in the FAC, and clarified in the Opposition Brief, that the App is in fact a known participant in—and intended recipient of—the communication of the Media Information.” [1] https://f.datasrvr.com/fr1/319/48563/Bose_Memo_and_Order.pdf https://f.datasrvr.com/fr1/319/48563/Bose_Memo_and_Order.pdf