App Suit Against NFL's Colts May Be Dismissed

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By Daniel R. Stoller

Nov. 8 — Consumer class claims that LISNR Inc. recorded consumer communications at Indianapolis Colts NFL games without permission should be tossed, the data transmission company said ( Rackemann v. LISNR, Inc., W.D. Pa., No. 16-cv-01573, motion to dismiss 11/7/16 ).

The case arises out of claims that LISNR, along with the Colts, allegedly intercepted and recorded private consumer communications for economic benefit without permission in violation of the Electronic Communications Privacy Act (Wiretap Act), 18 U.S.C. §2510.

Rodney Williams, founder and CEO of Cincinnati-based LISNR, told Bloomberg BNA Nov. 8 that the allegations against the company are “completely false” because the technology doesn't record audio in any capacity. Unlike Apple Inc.'s Siri, Alphabet Inc.'s Google Now and Amazon.com Inc.'s Echo, LISNR doesn't use “audio content recognition” technology to record and decode what the consumer is saying, he said.

Instead of recording audio, LISNR's “digital signal processing” technology filters out sound and decodes high frequency audio and extracts data, Williams said. The technology merely “decodes and demodulates live messages,” he said. For example, LISNR is used by sport franchises to send welcome messages or player injury updates to fans, who consent to the communications, as they enter the stadium, he said.

Representatives for the Colts and the named plaintiff didn't immediately respond to Bloomberg BNA's e-mail requests for comment.

The case highlights some of the issues around applying the Electronic Communications Privacy Act, and it's subsequent sections such as the Wiretap Act, to new and advancing technologies. Although ECPA reform has been floated around Congress, the Senate has struggled to pass measures to help clarify the law. The lack of clarity around specific provisions of the law may cause a continued increase of consumer class actions.

Wiretap Act Claims

According to the Oct. 24 class complaint, LISNR worked with the Colts and a third party developer to listen to and record consumer conversations. Instead of just listening to audio when the microphones are activated by the consumer, “the app listens to and records all audio within range,” the plaintiffs said.

The Wiretap Act prohibits the intentional interception of wire, oral or electronic communications but excludes from liability interceptions by devices used in the ordinary course of business by electronic communication service providers.

Here, LISNR said it didn't intercept consumer communications under the Wiretap Act because it didn't directly acquire the communications. In fact, LISNR claims that the application itself, not the listed defendants, activated users' microphones. LISNR said that the claims should be tossed because the named plaintiff didn't adequately allege that LISNR acquired or used the data—such as how LISNR used the communications for economic purposes.

LISNR is represented by Thompson Hine LLP and the named plaintiff is represented by Anapol Weiss. Counsel for the Colts couldn't be immediately identified.

To contact the reporter on this story: Daniel R. Stoller in Washington at dstoller@bna.com

To contact the editors responsible for this story: Donald G. Aplin at daplin@bna.com ; Jimmy H. Koo at jkoo@bna.com

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