Spyware Case to Remain in Chicago, Judge Rules

(CN) - Two men can sue an Internet-research company for allegedly using free game software to surreptitiously monitor their online activity and sell the collected data to market researchers, a federal judge ruled.

ComScore lured customers to install its software by advertising free screensavers, games with free prizes and other programs, according to the complaint, which says the company then improperly obtained and used visitors' personal information for its own purposes.

Mike Harris and Jeff Dunstan discovered that ComScore was monitoring their online behavior and filed a federal class action in Chicago, alleging violations of the Electronic Communications Privacy Act, the Stored Communications Act and the Computer Fraud and Abuse Act.

ComScore moved to dismiss the case or to transfer the case to Virginia, where its offices are based. It argued that a user who downloads its software must click a box acknowledging that he has "read and agreed to the terms and conditions of the Privacy Statement and User License Agreement," and this license agreement states that jurisdiction rests in Virginia.

But Harris and Dunstan claimed to not know they were installing surveillance software along with the free program. They also claimed that the forum-selection clause was not apparent when they downloaded the software, and that the terms of service were obscured during the installation process "in such a way that the average, non-expert consumer would not notice the hyperlink" to them.

U.S. District Judge James Holderman said that "at this stage ... the court must take the plaintiffs' word for it."

"It is true, of course, that the plaintiffs in this case should have seen the reference to the agreement and the requirement that they acknowledge that they read it before commencing their download," he wrote. "Nonetheless, it is not reasonable to expect a user casually downloading free software to search for such an agreement if it is not immediately available and obvious where to obtain it."

Citing precedent, he noted "in circumstances such as these, where consumers are urged to download free software at the immediate click of a button, a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms."

Although Holderman recognized that transferring the case to Virginia would be convenient for ComScore, and that many of the relevant documents are in Virginia, Holderman found that the balance weighed in favor of Harris and Dunstan's home forum.

"One of the plaintiffs is a resident of Illinois, and a significant event - his downloading and installation of the software - occurred here," Holderman wrote.

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