The Secret Eye

Written By Kyu Hee Chu

Reviewed By Cynthia Amis

Technology never ceases to amaze me …and sometimes scare me.  Technology has advanced to the point that somebody can spy on you while you’re in the privacy of your own home, without you ever knowing about it.  That’s what some people who rented from Aaron’s, Inc. experienced with their laptops and what led the Byrd couple to file a lawsuit against the company.

Imagine having rented and bought a laptop and then one day somebody shows up at your door to take back your laptop because he thinks you forgot to make a payment, and as proof he pulls out a photograph of your husband using the laptop that was taken from the webcam.  Creepy?  Major invasion of privacy?  The Byrd couple apparently thought so.

In Byrd v. Aaron’s, Inc., the plaintiffs (the Byrd couple), alleged that the defendant (Aaron’s, Inc.) secretly installed a software (PC Rental Agent) on laptops and computers that it rented out or sold to customers which allowed the defendant to access electronic communications including photos taken through the computers’ webcams.  The plaintiffs also asked for a preliminary injunction which if rewarded would’ve kept the defendants from accessing webcams in their customers’ computers and from destroying any evidence regarding the software that allowed the “spying” (including information that the defendants gathered using the software and information about people who may have been using computers that had the software installed, and so on).

Unfortunately, the District Court of the Western District of Pennsylvania denied the Byrds’ request for injunction.  The court said that to be granted a preliminary injunction, a party (in this case, the plaintiff) needs to show that 1) he is likely to be successful on the merits, 2) he will suffer irreparable harm if the injunction is not awarded, 3) granting an injunction will not result in even greater harm to the opposing party (in this case, the defendants), and 4) the injunction would be in the public’s interest.  The court then went on to say that the plaintiff must first establish factors 1 and 2.  If those two factors are not present, then there’s no point of even looking at the rest of the factors.  The court also put special emphasis on the second factor (irreparable harm).  Irreparable harm was defined as “potential harm which cannot be redressed by a legal or an equitable remedy following a trial.”

In sum, the court decided that it could not grant the preliminary injunction because the Byrds’ could not establish irreparable harm.  The court said that in determining whether there is irreparable harm, the court must ask if the plaintiff is in danger of suffering the irreparable harm at the time the preliminary injunction is to be given. The court found that the plaintiffs are not suffering any harm at the moment as the plaintiffs no longer have the laptop in question with them, and so are not entitled to the injunction.*

This ruling on the preliminary injunction seems to have surprised many, as the defendant’s actions seem like blatant spying on unaware consumers and a huge invasion of their privacy.  The part that some lawyers thought was the real problem of the matter was that the defendant had not given the plaintiffs any notice regarding the installation of such software on their laptops and the consumers had no idea that they may be monitored or watched through their laptops or computers.  However, this is just the ruling on a preliminary injunction, and if the parties decide to go to trial, they can.  It will be interesting to see what the court will have to say then.

*Follow the link below to read the Magistrate Judge’s Report & Recommendation on the Byrd’s Motion for Preliminary Injunction:

https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0Bymxq92Dj73DYjg1NDJjMjItNTZlNi00MjcyLWExNzAtNDQyYmU4MzQ5NDBk&hl=en_US&pli=1

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