Harris v. Comscore, Inc.

292 F.R.D. 579, 2013 WL 1339262, 2013 U.S. Dist. LEXIS 47399
CourtDistrict Court, N.D. Illinois
DecidedApril 2, 2013
DocketNo. 11 C 5807
StatusPublished
Cited by6 cases

This text of 292 F.R.D. 579 (Harris v. Comscore, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harris v. Comscore, Inc., 292 F.R.D. 579, 2013 WL 1339262, 2013 U.S. Dist. LEXIS 47399 (N.D. Ill. 2013).

Opinion

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, Chief Judge:

In their Second Amended Complaint, plaintiffs Mike Harris and Jeff Dunstan allege, as individuals and on behalf of a class of similarly situated individuals, that comScore, Inc. (“comScore”) improperly obtained and used personal information from their computers after they downloaded and installed eomScore’s software. (Dkt. No. 169.) They assert violations of the Stored Communications Act (“SCA”), 18 U.S.C. § 2701(a)(1), (2) (Count I), the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2511(l)(a), (d) (Count II), and the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030(a)(2)(C) (Count III). They also assert a claim for common law unjust enrichment (Count IV). Currently pending before the court is plaintiffs’ motion for class certification (Dkt. No. 152), which requests that the court certify the following class and subclass:

Class: All individuals who have had, at any time since 2005, downloaded and installed comScore’s tracking software onto their computers via one of comSeore’s thii’d pai’ty bundling partners.
Subclass: All Class members not presented with a functional hyperlink to an end user license agreement before installing comSeoi’e’s softwai’e onto their computers.

For the reasons explained below, that motion is gi’anted in part and denied in pai’t.

BACKGROUND1

Defendant comScore, Inc. collects data about the activities of consumers on the internet, analyzes the data, and sells it to its clients. (Dkt. No. 140, at 2.) ComScox-e gath-ex’s its data thi’ough a progi’am called OS-SProxy, which, if installed on a computer, constantly collects data about the activity on the computer and sends it back to comS-core’s servers. (Dkt. No. 155, Ex. C, at 3-6.) The OSSPi’oxy software collects a vai’iety of infoi’mation about a consumer’s computer, including the names of every file on the computer, information entered into a web browser, including passwords and other confidential infoi’mation, and the contents of PDF files. (Id.) ComSeoi’e has been using OSSPi’oxy in its cui’rent foi’m, aside from immaterial valuations, since 2005. (See Dkt. No. 155, Ex. A, at 194:8-195:16 (explaining that in 2005 comScoi’e stopped routing the information from the consumei’s’ computers through proxy servers).)

One primary way that comScore distributes OSSPi’oxy is through cooperation with “bundlers” who provide free digital products to consumers on the internet. (Dkt. No. 155, Ex. D, at 6.) During the process of downloading the bundlers’ free software, the consumer has the opportunity to download OSSProxy. (See id.) The process by which OSSProxy is presented to the consumer is “materially identical,” regardless of which bundler provides the digital product the consumer is downloading. (Id.) Specifically, during the installation of the free digital product, the consumer is presented with a short statement (“the Downloading Statement”) regarding OSSProxy under one of several brand names, including “RelevantKnowledge, Pre-mierOpinion, PermissionResearch, Opi-nionSquare, and MarketScore.” (Id. at 9-10; Dkt. No. 180 ¶ 34.) A representative Downloading Statement reads as follows:

[582]*582In order to provide this free download, RelevantKnowledge software, provided by TMRG, Inc., a comScore, Inc. company, is included in this download. This software allows millions of participants in an online market research community to voice their opinions by allowing their online browsing and purchasing behavior to be monitored, collected, aggregated, and once anonym-ized, used to generate market reports which our clients use to understand Internet trends and patterns and other market research purposes. The information which is monitored and collected includes internet usage information, basic demographic information, certain hardware, software, computer configuration and application usage information about the computer on which you install RelevantKnowledge. We may use the information that we monitor, such as name and address, to better understand your household demographics; for example, we may combine the information that you provide us with additional information from consumer data brokers and other data sources in accordance with our privacy policy. We make commercially viable efforts to automatically filter confidential personally identifiable information and to purge our databases of such information about our panelists when inadvertently collected. By clicking Accept you acknowledge that you are 18 years of age or older, an authorized user of the computer on which you are installing this application, and that you have read, agreed to, and have obtained the consent of all computer and TV users to the terms and conditions of the Privacy Statement and User License Agreement.

(Id. at 10.) In general, underneath that message, the consumer is offered a link to the “Privacy Statement and User License Agreement” (the “ULA”)2 and two boxes reading “Accept” and “Decline.” (Id.) The consumer must check either “Accept” or “Decline” before he may click “Next” to proceed with downloading the free digital product. (Id.) OSSProxy will download and install on the consumer’s computer only if the consumer checks “Accept.” (Id.) The free digital product will download and install regardless of which box the consumer checks, although that fact is not apparent to the consumer. (Id.)

The ULA, which is materially identical regardless of which bundler provides the digital product the consumer is downloading, contains terms governing which information OSSProxy will collect from the consumer’s computer and how that information will be used. (Dkt. No. 155, Ex. A, at 127:10-12; 134:6-18.) Significantly, the ULA indicates that it is an agreement between the consumer and a “sponsor”—usually another company connected in some way with comScore— but, in most cases, also states that comScore will use the information collected. (See Dkt. No. 155, Ex. I, at 1, 6.) The plaintiffs allege that comScore has exceeded the scope of the consumer’s consent to monitoring in the ULA by, among other things:

• designing its software to merely “fuzzify” or “obscure” confidential information collected, rather than “mak[ing] commercially viable efforts to automatically filter” that information (Dkt. No. 154, at 13-14);
• failing to “make commercially viable efforts to purge” confidential information that it does collect from its database (Dkt. No. 154, at 15-16);
• intercepting phone numbers, social security numbers, user names, passwords, bank account numbers, credit card numbers, and other demographic information (Dkt. No. 155, Ex. C, at 2-6);
• intercepting the previous 25 websites accessed by a consumer before installation of comScore’s software, the names of every file on the consumer’s computer, the contents of iPod playlists on the computer, the web browsing history of smart-phones synced with the computer, and portions of every PDF viewed by the user during web browsing sessions (Id.);

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cole v. Gene by Gene, Ltd.
322 F.R.D. 500 (D. Alaska, 2017)
Vince Mullins v. Direct Digital, LLC
795 F.3d 654 (Seventh Circuit, 2015)
Halperin v. International Web Services, LLC
123 F. Supp. 3d 999 (N.D. Illinois, 2015)
Rapp v. Green Tree Servicing, LLC
302 F.R.D. 505 (D. Minnesota, 2014)
Arredondo v. Delano Farms Co.
301 F.R.D. 493 (E.D. California, 2014)
Giles v. St. Charles Health System, Inc.
294 F.R.D. 585 (D. Oregon, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
292 F.R.D. 579, 2013 WL 1339262, 2013 U.S. Dist. LEXIS 47399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-comscore-inc-ilnd-2013.