A class action complaint filed on December 9, 2009, in Illinois federal court alleges that WideOpen West, Finance, LLC ("WOW"), an Internet service provider, violated its users' privacy by "installing spyware devices on its broadband networks." Valentine v. WideOpen West (N.D. Ill., No. 1:09-cv-07653). This action against WOW follows the October 6, 2009, dismissal by a district court in California of similar claims against six out-of-state ISP defendants (including WOW) filed in November 2008 by the same lead plaintiff. The court in Valentine v. NebuAd, Inc. et al. (N.D. Cal., No. 3:08-cv-05113) found that the ISP defendants were not subject to personal jurisdiction in California, leaving the now-defunct NebuAd as the only defendant in that case. Plaintiff Valentine has now brought this action against WOW in the Northern District of Illinois.
The complaint alleges that some 330,000 high-speed Internet customer accounts were impacted by the "NebuAd Ultra-Transparent Appliance" that WOW used "to divert Internet traffic," including users' personal information, to NebuAd (a third party provider of tailored advertising services). The complaint alleges that WOW provided NebuAd with intercepted communications to (i) serve advertisements on the websites users visited, and (ii) transmit code that installed tracking cookies that could not be deleted from users' computers.
In addition, the complaint includes charges that WOW misrepresented to Congress the content of user traffic it diverted to NebuAd by stating in response to Congressional inquiries that no personally identifiable information was collected. The complaint also alleges that WOW's conduct constituted a tortious invasion of privacy, violations of the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act, and a violation of the Illinois Criminal Code's eavesdropping restrictions. It remains to be seen whether the class will be certified in this case.