A federal judge lopped off much of an eavesdropping class action against Bose Corp., in which the electronics maker was accused of surreptitiously collecting data on the listening habits of those using its bluetooth headphones.
Judge Andrea R. Wood said that plaintiff Kyle Zak’s first and second amended complaints continued to make the same arguments to support his claims under the Federal Wiretap Act and the Illinois eavesdropping statute. She dismissed two of the four counts with prejudice.
“Dismissing those claims with prejudice is appropriate at this stage in the case because Zak has had three opportunities to plead those claims and he has repeatedly failed to state a claim,” Wood wrote in her opinion. “This court detailed the problems with the [first amended complaint] in its prior ruling, yet Zak failed to correct those deficiencies with the [second amended complaint].”
Zak’s lawsuit accuses Bose of secretly collecting consumer data through its app and selling that data to third parties. Zak said that when he bought a pair of Bose wireless headphones, he, like all Bose customers, was encouraged to install the Bose Connect app on his mobile device to pair the headphones with his device. He contends that Bose Connect collects data about the audio files users play over their headphones and sells it to other companies, including data-mining company Segment.
“One’s personal audio selections — including music, radio broadcast, podcast and lecture choices — provide an incredible amount of insight into his or her personality, behavior, political views, and personal identity,” the original complaint states. “In fact, numerous scientific studies show that musical preferences reflect explicit characteristics such as age, personality and values, and can likely even be used to identify people with autism spectrum conditions.”
In addition to the claims under the wiretapping and eavesdropping laws, Zak’s suit makes claims under the Illinois Consumer Fraud and Deceptive Business Practices Act and Illinois’ equitable cause of action for unjust enrichment. Those claims will be allowed to proceed.
Zak’s wiretapping and eavesdropping claims were already dismissed without prejudice - meaning he was allowed to attempt to remedy the case's shortcomings in a new filing. Wood said that neither the first nor second amended complaint presented any new evidence supporting the allegations – just new conclusive statements.
The Wiretap Act forbids any person from “intentionally intercepting or attempting to intercept any electronic communication.” The act allows any person “who is a party to the communication or who has consent from a party” to intercept the communication as long as it is not for the purpose of criminal activity. The Eavesdropping Statute forbids anyone from “intentionally intercepting, recording, or transcribing” private communication to which he or she is not a party without the consent of all parties to the communication. Allegations under the Eavesdropping Statute hinge upon the interception being made secretly or by deception.
Zak claims Bose violates these laws because when the app pairs a Bose product with a streaming service such as Spotify, it collects the titles of audio files streamed through the device and transmits the data to a third-party company. The court twice concluded that the way the app works makes Bose a “party to the communication” as defined by the law, and therefore exempt.
“The communication flows from a music-streaming service to the app, which accesses and displays that information,” Wood wrote. “The user makes requests through the app, which forwards that information to the streaming service and processes that service’s provision of audio track information. Those facts made Bose a party to the communication.”
Bose has until June 10 to file an answer to the remaining counts of the complaint.
Zak is represented in the action by attorneys from the firm of Edelson PC, of Chicago.
Bose is represented by attorneys with the firm of ZwillGen PLLC, of Washington, D.C., and Chicago.