Trouble in AOL Waters
America Online Inc. has been accused of violating the rights of its subscribers by using the Netscape Web browser to capture the Web surfing activities of AOL subscribers.
A class action lawsuit was filed on Friday in the US District Court for the Southern District of New York (New York City). The lawsuit also names Netscape Communications Corporation as a co-defendant and is seeking damages based on the number of users of the Netscape Web browser.
The plaintiff, Christopher Specht, on behalf of himself and "all others similarly situated," claims that AOL and Netscape are illegally tracking Web surfers in violation of the federal Electronic Communications Privacy Act and the Computer Fraud and Abuse Act.
According to the complaint, Specht and all other persons who maintain Web sites on the Internet that provide "zip" files or "exe" files that can be downloaded by Internet users visiting these Web sites, have been spied upon by the defendants.
Joshua Rubin, the attorney representing Specht, told Newsbytes that his client maintains photographic sites on the Web from which pictures can be downloaded. However, Rubin did not want to disclose at this time just how Specht became aware of the alleged spying.
AOL and Netscape allegedly carry out their spying by distributing a product known as "SmartDownload," which Internet users are told to use in order to install Netscapes Communicator software. Thereafter, the complaint says, "SmartDownload assumes from Communicator the task of downloading various files," and the first time an Internet users runs Netscape's Communicator, Communicator automatically sends to the user's computer a small data text file known as a "cookie." This cookie is unique for each computer and, the complaint says, functions as a kind of electronic identification. Each time an Internet user downloads any zip or exe file from any site on the Internet using SmartDowload, SmartDownload automatically transmits to AOL the name and Internet location of the file, along with the identification string from the cookie previously sent by Netscape as part of the Communicator software and stored on the users computer, the complaint says.
By doing this, the lawsuit states, the defendants are "using SmartDownload to eavesdrop." Further, the complaint says that the defendants are intercepting information about a communication between Internet users and a Web site to which the defendants are not a party.
Although the court has not yet ruled that the lawsuit may proceed as a class action, the complaint seeks statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000 per plaintiff.
According to Jill Abrams, a law partner of Rubin, those damages can be quite a lot.
In a class action lawsuit, attorney fees and costs of the suit, which can also be quite a lot, are paid off the top before any monetary damages are shared among the class of people on whose behalf the lawsuit was brought.
In addition to monetary damages, Specht is also asking for a jury trial and an injunction preventing defendants from continuing their current practice.
Rubin said that AOL has been served with a copy of the lawsuit, but that it has not replied as yet.
No one from AOL returned Newsbytes' call for comment.
Reported by Newsbytes.com, http://www.newsbytes.com.