Lovense Lush Vibrator Wiretap Class Action Moves Forward

A class action lawsuit alleging that a Chinese-made sex toy unlawfully gathers user data has been kept alive after a California federal judge ruled against a motion to dismiss.

According to U.S. District Judge Jeffery S. White, the Wiretap Act protects consumers from companies illegally harvesting their data – even if the data is gathered through something as unconventional as a sex toy.

Hytto Ltd., doing business as Lovense, sells Bluetooth enabled wearable vibrators.

The “Lush” line of sex toys allows partners to control the vibrations of the product by using a smartphone app.

Plaintiffs in the Lovense class action argue that the company gathers data from the apps including the date, time, and vibration settings used by consumers.

Judge White recently ruled against Lovense’s arguments that the date and time of vibration transmissions do not count as “content” under the Wiretap Act.

The judge found that, while other courts have determined that date and time of such transmissions were not content, the vibration settings used by consumers does count as content under the Wiretap Act.

“Individuals, of course, communicate by touch all the time,” Judge White wrote in his ruling. “It is only with the evolution of certain technologies that the conveyance of such unspoken communications is now apparently not limited to situations where both the sender and recipient of touch-­based communication are in the same location.”

The plaintiff identified as “S.D.” in the class action complaint filed her suit against Lovense in February 2018.

S.D. reportedly purchased the Lush vibrator after relying on company promotions that the system records “as little information about our users as possible.”

Lovense reportedly assured customers that the data was encrypted, meaning that no pictures, videos, or chat logs were stored in the company’s data base.

Despite these representations, S.D. argues that Lovense regularly collects and stores “highly intimate and sensitive data regarding consumers’ personal use of its Lovense vibrators, including the date and time of each use and the selected vibration settings.”

Although the vibration transmissions are an unusual form of communication, Judge White determined that these transmissions are protected under the Wiretap Act.

“The involvement of technology in the transmission of data does not change the character of the data,” the judge said. “That the internet is used to effect a touch-based communication does not change the essential character of that communication.”

Although the defendant argued that a California federal court did not have jurisdiction over the issue, Judge White denied this argument in his ruling.

The judge found that the company was aware that it had a “significant American customer base,” meaning that it was entirely foreseeable that the collection of data could cause harm to American customers.

However, Judge White did side with Lovense on at least one issue when he dismissed S.D.’s claim of unjust enrichment under state laws.

Plaintiff S.D. is represented by Lily E. Hough and Rafey Sarkis Balabanian of Edelson PC.

The Lovense Lush Vibrator Data Collection Class Action Lawsuit is S.D. v. Hytto Ltd. d/b/a/ Lovense, Case No. 4:18­-cv­-00688, in the U.S. District Court for the Northern District of California.

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