Judge Forwards Class Action Suit Against Adult Toy Maker

OAKLAND, Calif. (CN) – A federal judge advanced the bulk of a class action lawsuit Wednesday accusing a Chinese sex technology company of using customers’ cellphones to harvest intimate details about how they use its remote-controlled vibrators.

In a 17-page order, U.S. District Judge Jeffrey White rejected Hong Kong-based Hytto Ltd.’s contention it can’t be sued in the United States over allegations it intercepts and stores data via a mobile app about when, how and how often long-distance couples in the United States use its Bluetooth-enabled Lush vibrators, finding the company’s conduct had exposed it to scrutiny by U.S. courts.

Hytto uses several California-based companies to advertise and distribute the Lush toy and sells it in brick and mortar stores, according to the January 2018 complaint.

“Hytto was aware of its significant American customer base,” White ruled Wednesday in Oakland. “By intercepting the transmissions of Body Chat app users, Hytto targeted its wrongful conduct at customers, some of whom Hytto knew, at least constructively, were residents of the U.S.”

Long distance couples can connect their Lush devices to their cellphones via Bluetooth using Hytto’s Body Chat app. When two people use the app together, either partner can select and transmit the vibration intensity for the paired device.

But according to the anonymously filed lawsuit, Body Chat collects users’ personal information, including the frequency, date, time and intensity of use, and stores it along with their email addresses on Hytto’s servers without telling them.

The complaint claims this violates the federal Wiretap Act, which prohibits “interception” of the “contents” of an “electronic communication.”

Hytto, however, says that Bluetooth transmissions like those made by its Lush devices don’t constitute electronic communications under the Wiretap Act. And it insists the data transmitted doesn’t constitute “content” under the statute.

The Wiretap Act defines “content” as “any information concerning the substance, purport, or meaning of that communication.” The law excludes “record” information – data automatically generated when a communication is sent, such as the origin or length of a phone call.

Partly siding with Hytto Wednesday, Judge White held that date and time of usage data constitutes record data under the Wiretap Act because it is automatically generated. But vibration intensity data sent from app to app and then to the Lush device constitutes content because users enter “desired strength of touch” into the app.

“Individuals, of course, communicate by touch all the time,” White wrote. “This desired strength, or vibration intensity, is not ‘incidental’ to the communication occurring between the apps and, by extension, between the humans operating each app; it is the very essence of this particular type of touch-based communication.”

The judge also kept alive state-law claims for intrusion upon seclusion and unjust enrichment. He gave the plaintiff, identified in the complaint as S.D., permission to amend the Wiretap Act claim for time and date usage by June 14.

S.D. purchased the Lush toy in late 2016 and paired it with the internet applications, without knowing her information would be collected, according to the complaint.

Lily Hough of Edelson PC in San Francisco represents S.D., and Jui-Ting Anna Hsia of ZwillGen Law, also in San Francisco, represents Hytto. Neither attorney could be reached for comment Wednesday.

The Hytto lawsuit is not the first related to sex toys, technology and spying.

In March 2017, another vibrator production company, We-Vibe, paid $3.5 million in a settlement with a class that claimed it was using technology apps to track users’ activities unbeknownst to them.

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