It may become one of the defining questions of our age: Does your personal data become someone else’s asset as soon as you go online? One Charter customer says that he has a right to determine how his data is used, and that the cable/internet company failed to get his permission or disclose that it would be using this information for its own gain.
In a lawsuit filed last week in a federal court in Missouri, the customer makes an argument that many consumers would likely sympathize with: Personally identifiable data belongs to you, and Charter (or any internet service provider) shouldn’t be able to take it and monetize it without your consent.
The complaint [PDF] opens by explaining what Charter is and what it does, as is typical. Charter, it says, is in the business of selling cable, internet, and phone services for monthly itemized rates — so far, so good.
But then it gets sinister: “In fact, however, and as [Charter] well knew at the time,” it continues, their, “products and services were nor being offered for or provided at the total dollar rates marketed, advertised, and intended.”
Why? Because subscribers’ personal data was part of the package, and that has value.
Charter “failed to disclose that [it] would be selling or providing for other valuable consideration, [its] subscribers’ personally identifiable information, specifically names, addresses, and other subscriber information … to third parties unknown to the subscribers and known to [Charter],” the suit claims.
Charter’s “sale or disclosure of [customers’] personally identifiable information violated federal law, violated plaintiff’s First Amendment rights to privacy and publicity, and/or violated contract or quasi-contract principles,” the complaint concludes, because customers were not given any “meaningful” opt-out option, and the existing opt-out option didn’t prevent their data from being sold to or used by third parties.
The plaintiff is seeking class-action status for the suit, hoping to represent an estimated six million other Charter customers who received service between Jan. 2005 and Sept. 2014.
“A class action is the appropriate method for the fair and efficient adjudication of this controversy,” the complaint states. “It would be impracticable, cost prohibitive, and undesirable for each member of the Class to bring a separate action.”
That, however, is going to be an uphill battle for the consumer and their lawyers. Charter is one of hundreds of companies that explicitly take away your right to sue when you do business with them, instead shunting you into mandatory binding arbitration. The company is in good (or really, bad) company in this; pretty much every national telecom and broadband provider is right there on the list with them.
The suit is claiming that Charter’s arbitration clause — at least, prior to Oct. 2014, covering the period of the lawsuit — is unenforceable because consumers had no choice.
The clause is “embedded deep within its terms of service and not prominent or readily apparent,” the suit claims, nor were new customers ever given a chance to opt out. And moreover, it gamely tries, arbitration is unfair in every way.
Charter would get to choose the arbitrator, “in effect the judge and jury.” Charter also maintains the right to sue customers in court, “while subscribers may only arbitrate their claims.” Charter won’t pay for it, so the consumer is on the hook for attorney’s fees even if they win something, and last but not least, Charter’s arbitration provision “is overly broad as it purports to bind a plaintiff to arbitration regarding any matter between the parties, which would include intentional torts,” which are harms that someone does intentionally to someone else.
Whether or not the lawyers will succeed convincing the court of that is anyone’s guess. Another customer also sued Charter in Nov. 2016 over the controversial below-the-line “Broadcast TV” and “Regional Sports Fees” the company imposes on subscribers.
In that case, the customer is trying to avoid arbitration by not seeking any damages, but instead only injunctive relief — they want the court to make Charter stop doing the thing.
[via the St. Louis Record]