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
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
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
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.
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
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
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