ShareThisThousands of California residents can sue AOL in their home state for invasion of privacy despite agreements they signed requiring all legal disputes to go before "courts of Virginia" and be guided by Virginia law.
A federal appellate court on Friday cleared a path for a class-action lawsuit to proceed against AOL.
On July 31, 2006, AOL (formerly America Online) placed on a public Web site 20 million search inquiries by 658,000 of its members over a three-month period.
A broad protest erupted in cyberspace, with one blogger describing the incident as the "Chernobyl of the Internet," in reference to a disastrous 1986 nuclear accident in the former Soviet Union.
The data included addresses, phone numbers, credit-card numbers, Social Security numbers, passwords and other personal information.
They revealed members' "personal struggles with various highly personal issues, including sexuality, mental illness, recovery from alcoholism and victimization from incest, physical abuse, domestic violence, adultery and rape," according to the class-action suit on behalf of affected members nationwide.
Hundreds of searches were by people planning to kill themselves or by others seemingly contemplating murder, according to readers of the material.
The suit, which followed less than two months after the incident, was filed in Oakland federal court, alleging violations of federal electronic privacy law and, on behalf of the California subset, state law requiring businesses to protect customers' personal information. It seeks an unspecified amount of monetary damages.
AOL, a unit of media conglomerate Time Warner Inc. and one of the largest access businesses in the United States, persuaded U.S. District Judge Saundra B. Armstrong to throw the suit out because of the clause in the membership agreements mandating that legal disputes go before a Virginia court, where class actions are not allowed. (Until its recent move to New York, AOL was based in Dulles, Va.)
But on Friday, a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals reversed that decision for the as-yet-undetermined number of California residents who are part of the class and sent it back to Armstrong for further proceedings.
Citing a 1972 U.S. Supreme Court opinion and a 2001 California court of appeal decision, the circuit panel ruled that "enforcement of the forum selection clause violates the (California) Consumer Legal Remedies Act," and is unenforceable against California residents. The state's public policy would be violated if its residents were forced to waive their rights to a class action and remedies available under California consumer law, the panel declared.
In the public posting, AOL user names were changed to numbers, but the ability to analyze all searches by a single user often made it easy to identify the user, the panel noted.
The opinion was authored by Judge Dorothy W. Nelson and joined by Judge Stephen Reinhardt. A separate, concurring opinion was written by Judge Carlos T. Bea.
A note attached to the material when it was posted read, "The goal of this collection is to provide real query log data that is based on real users. It could be used for personalization, query reformulation or other types of search research."
Ten days later, AOL withdrew the data from its research Web site, calling its appearance there "a screw-up," but not before it had been downloaded, reposted and made searchable at a number of Web sites.
Some of those sites present the data in a searchable form, and others "invite the public to openly criticize and pass judgment on AOL members based on their searches," according to the circuit court opinion.
(dwalsh(at)sacbee.com.)
(Distributed by Scripps Howard News Service, www.scrippsnews.com.)
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