Aaron’s, Inc., an Atlanta-based national rent-to-own chain, is alleged to have deployed software on laptops rented by consumer that was used to take pictures and record keystrokes on computers provided to its customers, in violation of ECPA.
In addition to naming Aaron’s, the lawsuit was brought against Aspen Way Enterprises, the Aaron’s franchisee that leased the laptop, and DesignerWare, LLC, the Pennsylvania-based company behind the surveillance software PC Rental Agent, which was allegedly used. In a press release, Aaron’s, Inc. claimed that no owned and operated stores deployed such software and any such software was used by an independent franchisee.
Without having reviewed the complaint yet, it’s hard to judge the merits of the ECPA allegations, but the deployment and use of such software, while somewhat creepy, is not necessarily a violation of federal law. Software with similar capability can be sometimes be found on computers distributed by companies to its employees, and the ability to record and capture keystrokes (setting aside the webcam allegations) can be useful for productivity monitoring and other legitimate uses. The key question is in such cases is often whether the use of the software was properly disclosed and consented to by the user. From the nature of the allegations in this case, at least the lead plaintiffs claim they were unaware of the use of the software. Whether that unawareness is due to lack of disclosure, inadequate disclosure, or failure to review appropriate disclosures is unknown at this stage.
Last year, I testified before the Senate regarding a similar scenario – the use of remotely activated webcams by the school district in Lower Merion, Pennsylvania. In that case, however, the only allegation was the use of the webcam and not any use of keystroke monitoring software. Under the provisions of the federal Wiretap Act, that distinction is important, because remotely activating a webcam without consent does not violate federal law, while capturing audio communications and keystrokes would violate federal law.
For more on this distinction, and a copy of my testimony in that case, go here.
For more on the Aaron’s story, go here.
