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Laptop spyware class action reinstated

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A U.S. appeals court has reinstated a putative class action lawsuit filed by a couple who said their rented computer had spyware that took pictures of them and the websites they visited, violating their privacy.

Two of the defendants in the case, Billings, Montana-based Aspen Way Enterprises Inc. and Philadelphia-based DesignerWare L.L.C., reached a settlement over the issue of spyware with the Federal Trade Commission in 2013.

Crystal and Brian Byrd filed suit against Atlanta-based Aaron’s Inc., franchisee Aspen Way Enterprises and DesignerWare, among others, charging violation of the Electronic Communications Privacy Act of 1986, according to Thursday’s ruling by the 3rd U.S. Circuit Court of Appeals in Philadelphia in Crystal Byrd; Brian Byrd v. Aaron’s Inc.; Aspen Way Enterprises Inc. et al.

Ms. Byrd had entered into a lease agreement to rent a laptop computer from Aspen Way in July 2010, according to the ruling. Although Ms. Byrd said she had made full payments under the lease agreement, in December 2010 an Aspen Way agent came to the Byrds’ home to repossess the laptop on the grounds lease payments had not been made, according to the ruling.

The agent allegedly showed a screenshot of a poker website Mr. Byrd had visited, as well as picture taken of him by the laptop’s camera as he played. “The Byrds were troubled and surprised by what they considered a significant and unauthorized invasion of their privacy,” said the ruling.

Aspen Way had obtained the picture and screen shot through DesignerWare spyware that had an optional function that could collect screenshots, keystrokes and webcam images from the computer and its users, according to the ruling.

The Byrds said between November 2010 and December 2010, this spyware secretly accessed their laptop 347 times on 11 different dates. They also said a total of 895 computers across the country were similarly surveyed.

The Byrds filed suit in U.S. District Court in Pittsburgh, which dismissed the case on grounds including that the proposed classes were overly broad.

A three-judge panel unanimously reinstated the case on several legal grounds, including that an overly broad class was not ascertainable.

“The district court erred both in relying on an errant conclusion of law and improperly applying law to fact,” said the appeals court, in reversing the lower court ruling and remanding the case for further proceedings.