A class-action lawsuit against a Chinese sex toy company accused of storing intimate data from its internet-connected dildo can move ahead, a California judge has decided.
Lovense was sued [PDF] in January 2018 in America by unhappy customer "S.D." after she discovered that the company was storing not just the time and date she was using her Bluetooth-enabled Lush vibrator but also its intensity setting and – critically – attaching that data to her personal email address.
Despite telling users that it takes its customers privacy "very seriously" and "designed our system to record as little information about our users as possible," Lovense later argued in court documents that recording how hard its customers like to take it is no more than the "ordinary course of business."
Even if that business is getting people off with pink C-shaped vibrators, the judge decided [PDF] that it was far from "ordinary" to gather the information.
Among the legal arguments thrown at Lovense, S.D. claimed that the company had broken the Wiretap Act by accessing that information without asking for permission or even informing her that it was gathering the data.
Lovense did not deny it was gathering the data but instead argued that the Wiretap Act didn't apply because the device connects using Bluetooth and since it is a short-distance protocol it doesn't constitute an "electronic communication."
The judge didn't rule with them on that argument, however, because he decided the data interception happened over the internet, not Bluetooth. And to make sense of that you need to understand the latest in long-distance loving.
Because the Lush is no ordinary vibrator: a couple can download the company's Body Chat app and then one partner – the one without the sex toy inserted – can send intensity commands over the internet to the other person's phone, which then transmits that message via Bluetooth to the device.
Dinner for three
The company’s website foresees couples using this system from opposite ends of the globe as well as sat at a restaurant table. We're not sure of the wisdom of either, especially given time differences, but presumably people make it work.
Having struck down the claim the Wiretap Act did not apply thanks to Bluetooth's short distance, the judge also disagreed with the assertion that the time/date and intensity setting did not constitute "content." It is content, he decided, because it was an "intended message to another" and an "essential part" of the communication – which is hard to disagree with.
Hard to disagree with the legal argument that is; you can see how disagreement may arise over the intensity level one person sat in a different country decides and what the other person at the receiving end of it feels is correct.
The decision on which setting to send is not "incidental", the judge noted but instead "the very essence of this particular type of touch-based communication." Hence, content.
The parent company of Lovense, Hytto, then argued that it was a "party to the communication" and so couldn't wiretap its own communications. But this was very much a party that the company hadn't been invited to, the judge ruled.
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As such, all of the company's arguments against the assertion that their long-distance dildo was effectively being wiretapped were struck down and the court case can continue, with the next legal round planned for June 14.
You do have to wonder why a sex toy manufacturer thought it would be fine to store details of the use of its products, especially connecting it to individual accounts. We trawled the court docs to try to find an explanation but have been unable to find one. According to a number of reviews of the device on Amazon, however, the biggest problem with the Lush vibrator is that the Bluetooth connection breaks off after several minutes, leaving both partners dissatisfied. Which begs the question: is all this no more than a poorly considered debugging effort?
Press 1 for Yes; 2 for No; and 3 for... sorry, what were you talking about again? ®