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Federal Judge: Consumers Can Sue comScore

10 Apr, 2013 By: Doug McPherson

CHICAGO – A federal judge has ruled that consumers who are suing the Web measurement company comScore for privacy violations can proceed with a class action.

Last week, U.S. Northern District of Illinois Judge James Holderman certified a class of everyone since 2005 who downloaded comScore’s software from a third party. Jay Edelson, lawyer for the consumers who brought the case, estimates that the class could total 1 million people.

Online Media Daily reports the lawsuit was filed in 2011 by two comScore panelists, Jeff Dunstan of California and Illinois resident Mike Harris, who allege that they installed comScore’s software after downloading a free product – like a screensaver, game or program that creates greeting cards.

They say 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. Dunstan and Harris allege 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 two men also say comScore’s marketing partners – who bundle comScore software with freeware – often don’t disclose information about comScore until after users have started downloading the free programs. Dunstan and Harris argue that comScore violated various federal privacy laws by capturing information from people’s computers without their informed consent.

comScore unsuccessfully argued that the case didn’t lend itself to class-action certification because questions about consent require case-by-case analysis. But Holderman ruled that the lawsuit presented many common questions, including whether the comScore’s data collection practices went beyond what the company said in its terms of service.

Seattle-based Internet legal expert Venkat Balasubramani told Online Media Daily the ruling would likely increase the pressure on comScore to settle the case. One reason is that the relatively large size of the class means that comScore potentially faces the risk of high damages if it loses at trial. Another is that the major question in the case appears to be whether comScore’s terms of service disclosed enough information about its data collection. “It comes down to a consent issue,” Balasubramani said. “In other cases, there’s more of a gray area about about whether the conduct fits within a statute.”

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