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Smile! You might be being remotely monitored via webcam!  (Source: Ministry for the Environment)

Aaron's Inc. franchisees are free to continue to monitor laptop leasers via remote webcam spykit -- for now.
"Error: my sensor is dirty. Please take me in a steamy area... such as your shower."

Some may recall that back in May news broke of an Aaron's Inc. (AAN) franchisee remotely spying on users with a webcam to make sure they were making payments.  The incident led to one outraged couple filing suit against the company, seeking class action status.

Unfortunately for that couple -- Crystal and Brian Byrd -- there case was dealt a serious setback by Judge Sean Mclaughlin, a judge with the US District Court for the Western District of Pennsylvania (Erie District).

In his ruling [Google Docs], the judge refused to grant a preliminary injunction, which would have banned Aaron's and its franchisees from both continuing to monitor users with the "PC Rental Agent" remote webcam spykit and from conducting activities to obfuscate which computers had the spykit installed.

In denying the injunction, Judge Mclaughlin opens the door to continued monitoring of users, and to the company disguising how many users it monitors.

The court rules that that the plaintiffs don't have the computer any more and thus are no longer suffering harm and that they provided insufficient evidence to demonstrate that other members of the potential class are currently suffering harm.

Basically the dilemma the Byrd family's lawyers face in arguing their case is that no current employees are willing to whistle blow on their employer and discuss remote monitoring.  Furthermore, the court is dismissing a former employee who did testify against the franchisee as non-credible in so much as they aren't a present employee ("...given by Ms. Hittinger, and no other information about the current practices of Ms. Hittinger's particular franchisee location were elicited. In fact, Ms. Hittinger no longer works at an Aaron's...").  

The court seems content to take the Aaron's franchisee at its word about how many computers its monitoring, while dismissing the plaintiff's claims as speculative, writing:

In fact, according to the testimony of Timothy Kelly, co-owner of DesignerWare, Inc., on May 3, 2011, only eleven computers were transmitting information via Detective Mode to Aaron‘s franchisees. ECF No. 43, page 190. This is contrasted to the testimony that ―roughly 80 to 100 computers every month get reported stolen from Aaron‘s franchises. Id. The Court was given no evidence or information regarding the computers that were so transmitting and no information about the laptop users – that is, whether they are the lessees or others in possession of the laptops.

The problem is that while the franchisee is "cooperating" with the investigation, there is a very real possibility that it can obfuscate its current surveillance from investigators.  As the court seems content only to consider taking action if additional evidence can be gathered, and will only consider current employees as dependable witnesses, the Byrd family's trial prospects aren't looking too good.

About the only think working on their side at this point is that the court ruled in favor of the plaintiffs in a similar case against the Lower Merion School District of Pennsylvania who installed webcam remote capture software on its student's 2,300 loaner laptops.

However, that case had the advantage of having all the laptops be government property, and all the software installation practices being carefully chronicled in local government documents from the school system.  This case is far different as it deals with a private entity, who likely won't be foolish enough to share documentation on the extent of its monitoring or share its laptop collection with investigators.

And there's still the outstanding question of whether webcam monitoring really violates the Wiretap Act and the Computer Fraud and Abuse Act, which prevent the unauthorized interception of electronic communications.  In this case, the communication is not "intercepted" per se; it's initiated by the remote party.  

Thus while most in the public would understandably be repulsed and outraged at a company taking pictures of a family in a private setting, remote monitoring is a gray area of the law, particularly when the company owns the device in question.

Law enforcement and courts have shown willingness to side against lone parties, such as a former Apple, Inc. (AAPL) technician who installed remote monitoring software on Macs to take explicit photos of female clients.  However, whether courts will side against corporations engaging in somewhat similar behavior, particularly when it lacks the overt sexual overtones remains to be seen.  After all the corporations have the advantage of having money and greater privacy capabilities on their side.

Aaron's claims it doesn't monitor users remotely as a national practice.  But at this point it may be a moot point -- companies are one victory closer to watching their customers remotely.  Customers may complain -- but until additional legislation is passed, they may have little explicit legal recourse.

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RE: The $.25 fix....
By cjohnson2136 on 7/20/2011 4:42:30 PM , Rating: 2
I would say if the people have not paid their bill and not returned the computer then in the interest of knowing where the companies property is I would say go for it. But if the person keeps paying the bill then no it is an invasion of privacy.

RE: The $.25 fix....
By peternelson on 7/21/2011 4:48:47 PM , Rating: 2
If the equipment was not returned by the agreed date, or payment is overdue, then the police, some bailiff, or attempts at location can be made. This does not need a webcam, just a ping and traceroute would help location eg by similar means to the NSA's patent on IP geolocation. A determined thief could just tape over the camera and mic.

I suggest that if you use the service legitimately, then before you return the equipment, "Help" them re-image it, by totally scrubbing the hard drive. Your kindness in this matter will ensure that you know no trace of your personal data remains, including any webcam capture to disk they ran as part of the service.

It could morally be argued that running extra processes on your computer is stealing your electricity.

Better still is if they are remote accessing your webcam LIVE before any breach of contract on your part. Here is where it gets interesting because they are not simply using "the public Internet", but are transiting over YOUR PRIVATE NETWORK. That is using your LAN, or the wifi network between your access point and the machine. This is not public property. I'd suggest you could sue them for "theft of service" as Cable networks can, or accessing a private network without permission. However to increase the chance of enforcing this, write on a piece of paper "You are accessing a private network without permission. Disconnect immediately. If you fail to disconnect you hereby agree to pay our standard access fee of $500 a day or part thereof". Then hold this paper up in front of the webcam, so giving them notice. As further evidence you can log the packets they are sending back to their machine using packet capture software. The increase in traffic would likely have alerted you to their live session in the first place, assuming you knew of the possibility of such activities.

It's an important issue of principle because they are not just sending email, they are STREAMING VIDEO. That uses up your ISP tariff capacity fast which costs you money, which at very least would be damages.

IANAL but you could try this route in some small claims court, or at least generate some newspaper publicity that would discourage the company from continuing to act this way. You may be able to shut down the remote access using some firewall settings anyway.

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