Court dismisses wiretap claim, allows consumer fraud complaint to go forward against wireless headphone maker

On March 31, 2019, a federal district court in the Northern District of Illinois dismissed claims that an electronics and mobile application manufacturer violated federal and state wiretap laws by collecting consumers' usage information and transmitting that information to third parties.  

In Zak v. Bose Corp, No. 17-cv-02928 (N.D. Ill.), an Illinois consumer filed a federal class action complaint purporting to represent individuals who purchased and used Bose wireless headphones and the Bose Connect mobile application advertised on the headphones’ packaging to listen to music accessed through streaming programs such as Spotify or Apple Music.  The plaintiff claimed that Bose secretly intercepted consumers' music selections and disclosed the information to third parties, including to a sophisticated data miner for the purpose of profiling consumers, thereby violating:
  • the Wiretap Act, 18 USC 4 § 2511, which prohibits the intentional interception and disclosure of electronic communications, but does not punish interception of electronic communications by a party thereto; 
  • section 5/14-2(a)(3) of the Illinois Eavesdropping Statute, which applies when a private electronic communication is intercepted by a person who is not a party to the communication; and
  • the Illinois Consumer Fraud and Deceptive Practices Act (ICFA), 815 ILCS 505/2 et seq, which requires that the defendant perform a deceptive act or omission of a material fact in a commercial transaction.
The court dismissed the Wiretap Act and Illinois Eavesdropping Statute claims, reasoning that Bose was a party to the communications because the purpose of its mobile application is to receive, communicate, and display the users’ song requests.  However, the Court allowed the plaintiffs’ case to go forward to the extent that it alleges a cause of action under the ICFA.
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