The Direct Marketing Association is weighing in on a privacy lawsuit that it says “threatens to rewrite the rules of Internet commerce.”
The case, which was filed as a potential class-action against online measurement company comScore, was brought in 2011 by two panel members who say they installed comScore's software after downloading a free product -- like a screensaver, game or program that creates greeting cards. They allege that comScore's terms of service don't alert users about the “terrifying” amount of data the company collects -- including usernames and passwords, search queries, credit card numbers and retail transactions. comScore's terms also don't inform users that the software can change files on people's computers, as well as modify their security settings, the consumers contend.
comScore suffered a major defeat in the lawsuit in April, when a federal judge ruled that the consumers who filed suit, Jeff Dunstan of California and Illinois resident Mike Harris, can proceed with a class-action. U.S. District Court Judge James Holderman in the Northern District of Illinois certified a class of everyone who downloaded comScore's software from a third party since 2005. Holderman also certified a smaller subgroup of people who weren't shown a hyperlink to comScore's end user license agreement before downloading the software.
Jay Edelson, lawyer for the consumers who brought the case, estimated at the time that the class could total 1 million people.
comScore is seeking to appeal that ruling to the 7th Circuit. A coalition including the DMA, Interactive Advertising Bureau, Association of National Advertisers, American Association of Advertising Agencies and the U.S. Chamber of Commerce has friend-of-the-court papers asking the court to accept the case. This week, the appeals court said it would allow the groups to weigh in on comScore's side.
The trade groups contend that the case shouldn't have been certified as a class action. In their legal papers, they characterize the lawsuit as one in a long string of recent privacy cases that potentially could put a crimp in online commerce. “This case and others like it implicate foundational internet communication and commerce technology,” they argue.
The organizations add that their members “face a groundswell of privacy class actions, such as this one, brought ... by uninjured named plaintiffs presenting uncorroborated (and often untestable) allegations that their privacy rights, and those of a massive class of allegedly 'similarly situated' individuals, have been violated.”
What's more, the groups say, the decision to certify a class of plaintiffs against comScore “will serve as a model for other courts and plaintiffs.”
This brief was the first one filed by the DMA's new litigation unit.
Someone should tell the DMA that hyperbole no longer works. Rather than rail at "rewriting the rules of Internet commerce," focus on the controls consumers already have when given proper notice, choice, access and the ability to change one's mind. If, however, if comScore has tried to slide by consumers on any it, they are exposing the rest of us to consequences of legal precedent. That will do far more than put a "crimp in online commerce." The best approach to argument in the digital age is to harken back to the advice heard from my black-and-white TV, "Just the facts."