PITTSBURGH (CN) — Football fans sued the Indianapolis Colts in a class action, claiming its smartphone app secretly recorded them without their consent even when the app and the phone were off, to collect data for targeted ads.
Lead plaintiff Alan Rackemann also sued Linzcam, which developed the app, and Lisnr, which allegedly helped the Colts integrate "beacon technology" into the app.
A similar class action was filed against the Golden State Warriors basketball team and Linzcam in August in San Francisco Federal Court. The third defendant in that case was Sonic Notify dba Signal360.
In the Oct. 14 lawsuit in Federal Court, Rackemann claims the Colts used the app to "systematically and surreptitiously intercept ... consumers' oral communications without their consent," using the interactive app to track their behavior and send targeted ads to their phones.
He says the app recorded users or was capable of recording them all the time, even while the app was idle and the phones were in lock mode.
Rackemann says the defendants secretly recorded him for four years, and did the same to a class of thousands.
The team pushed the app as "the official mobile app of the Indianapolis Colts," to deliver scores, updates and video clips to users.
When he downloaded it, Rackemann says, he received a popup asking him to grant the program access to his phone's microphone — but no notification that the device would be used to record him.
"Defendants do not provide any context or information regarding the microphone," the complaint states. "A reasonable customer would view the permission, which is requested right after 'Photos/Media,' as relating to media, one of the primarily advertised features of the app."
This lawsuit and the one against the NBA team both accuse the defendants of misusing audio beacon technology.
"Consumers' microphones were activated no matter where they were — in church, in their cars, at work or in their homes," without any message or other indication that the customers were being recorded, Rackemann says.
He says the "inherently invasive" nature of beacon tracking should require consumers to opt in, rather than opt out.
He seeks class certification and punitive damages for violations of the Electronics Communications Privacy Act, which "prohibits any person from intentionally intercepting any oral communication."
The Lisnr CEO denied the allegations in a Tuesday e-mail to Courthouse News.
"The allegations are false, as we are an ultrasonic protocol and don't use or record audio," LISNR founder and CEO Rodney Williams said in the email. He said his company's recording technology cannot pick up the sounds of human voices.
"We are stewards of consumer privacy and will defend all allegations vigorously," Williams said.
The Indianapolis Colts did not respond to requests for comment by email and telephone. Yinzcam did not reply to an e-mail request for comment.
Rackemann also wants an injunction ordering the defendants to stop using the app to record conversations.
His is represented by David Senoff with Anapol & Weiss in Philadelphia, and Rafey Balbanian with Edelson P.C., in San Francisco.
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