This month, the Indianapolis Colts, app developer Yinzcam, Inc., and ultrasonic technology provider Lisnr, Inc., were hit with a federal class action lawsuit in Pennsylvania for violating the Electronic Communications Privacy Act by allegedly allowing the Colts fan app to listen in on users’ personal phone conversations, and use that information for advertising purposes without obtaining adequate consent.

The app provides Colts fans with team stats, scores, and other relevant news. The app also uses Lisnr, a service that utilizes web beacons, ultrasonic frequencies and audio signals in order to allegedly track how users interact with advertisements.  The complaint alleges that Lisnr’s software determines a user’s precise location by activating the user’s built-in microphone, and listening for nearby Lisnr audio beacons in order to allow the Colts app to target specific consumers and send them tailored content, promotions and advertisements based on their location.

Although the Colts app asks users to agree to give it access to the microphone, saying it “uses Smart Tones to deliver interactive experiences in-arena and on the road,” the plaintiffs allege that the activated microphone recorded all audio, including personal conversations, and that consumers were not given adequate notice of or opportunity to opt-out of the functionality. In addition to damages, plaintiffs seek an injunction ordering the defendants to stop using the app to record conversations.

TAKEAWAY: With the proliferation of highly technical tracking tools on the market, advertisers should ensure that they are providing clear notice and consent abilities. Many brands are hiring developers to build these apps for the brand; it is imperative that the brands dive in to fully understand the extent of the information captured by the developers, and how it will be used.