Broadband subscribers consented to participate in trials of a controversial behavioral targeting program by failing to opt out, the Internet service provider Wide Open
West argues in new court papers.
Wide Open West was one of six ISPs to partner in 2007 and 2008 with the defunct behavioral advertising company NebuAd. That company worked with
broadband providers to use controversial deep-packet inspection in order to gather data about subscribers' activity in order to serve them targeted ads.
The platform drew objections from
privacy advocates, as well as lawmakers, who argued that ISPs were able to provide data about everything consumers did online -- including their searches and activity at noncommercial sites. NebuAd
said its data collection was anonymous, and that consumers could opt out of the program.
In 2008, after news of the tests came to light, consumers sued NebuAd and the six ISPs, arguing that
the companies unlawfully installed "spyware." NebuAd eventually paid $2.4 million to settle litigation
about the program. But the ISPs have been fighting the cases; several have won dismissals.
Late last year, U.S. District Court Judge Edmond Chang in the Northern District of Illinois granted Wide Open West's motion to send the bulk of the
case to arbitration. But he allowed the consumers to proceed in federal court with an allegation that the ISP violated federal wiretap law by intercepting transmissions without users'
consent. Wide Open West this month filed new papers saying that the wiretap count should be dismissed.
Privacy advocates have said that consumers generally didn't realize that their ISPs
were working with NebuAd until after the fact. But Wide Open West argues in its court papers that consumers should have known because the company revised its terms of service, which are available
online, four weeks before the tests started.
Wide Open West also says that after the program started, it sent consumers emails and snail mail telling them how to opt out of NebuAd's platform.
"Plaintiffs consented to the interception of their communications by continuing to use WOW’s Internet services after receiving numerous forms of notice," the company says in its papers. The ISP
adds that a total of 3,000 out of 300,000 people opted out of the program.