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Judge: Cyberspying suit involving North East company should go forward – Erie Times

A federal judge says a lawsuit that claims a local company’s software was used to spy on customers of some Aaron’s rental stores should go forward, at least in part.

U.S. Magistrate Judge Susan Paradise Baxter has issued a report and recommendation in the case filed by a Wyoming couple, Crystal and Brian Byrd, who claim North East-based DesignerWare LLC’s software was installed on a computer they bought at an Aaron’s Rental Store in Casper, Wyo., and then used to spy on Brian Byrd as he played online poker.

Baxter recommended that all claims against Aaron’s Inc. should be dismissed.

The company argued there was no evidence that corporation-owned stores ever installed the software, PC Rental Agent, on computers it sold.

Baxter agreed, saying Aaron’s Inc. introduced the software in question to its franchisees at a meeting, but did nothing further.

Baxter recommended, however, that other claims against the software company, Designer- Ware, and against Aaron’s franchisee, Aspen Way Enterprises of Montana, which operated the store that sold the Byrd’s computer, should proceed.

The parties will have the opportunity to object to her findings before U.S. District Judge Sean J. McLaughlin decides whether to accept or reject her recommendation.

PC Rental Agent was marketed to help rental stores track down stolen computer equipment.

Brian M. Mancos, lawyer for DesignerWare declined to comment.

He said the company “is considering its legal options going forward.”

The Byrds, who sued in May, claim the software violates federal wiretap laws because it secretly captures a user’s keystrokes and screen images and uses the computer Web camera to take a picture of the computer’s user.

DesignerWare argued in court records that the complaint must be thrown out because PC Rental Agent is not a device as defined by the Electronic Communications Privacy Act.

It also said software’s tracking activity — grabbing static images of data on a computer and e-mailing them to a store — does not amount to the interception of electronic communication as defined by the law.

Baxter disagreed.

“The court has little trouble finding that the acquisition of plaintiff’s keystrokes constitutes an ‘interception’ under the statute. Plaintiff Brian Byrd typed keystrokes into his computer in order to play the poker game and this information (transmitted from his computer to the poker website) was acquired ‘in flight’ between plaintiff and the website,” she wrote.

DesignerWare also argued that the Byrds have failed to show they suffered any damage as defined by the law.

Baxter agreed and dismissed an allegation that the tracking software had caused the couple at least $5,000 in damages.

Aspen Way, the franchisee, sought to have the complaint dismissed on jurisdictional grounds.

Baxter ruled that the court had jurisdiction over the case, especially in light of the ongoing exchange of information between the software installed in Wyoming and DesignerWare’s server in North East.

LISA THOMPSON can be reached at 870-1802 or by e-mail. Follow her at twitter.com/ETNthompson.

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