One of the many products sold on Amazon is an “embedded pinhole camera” disguised as a “mountable hook.” This hook camera is motion-activated and does not alert individuals it is recording.

In M.S. v. Amazon.com, Inc., No. 3:23-cv-0046, 2023 WL 8283642 (S.D.W.V. Nov. 30, 2023), the vendor of this disguised hook camera was designated as “John Doe.”

As part of Amazon's “Fulfillment by Amazon” program, Amazon inspected the camera three times.

First, Amazon's “Product Safety Team” inspected the camera to ensure it did not “infringe privacy,” “surreptitiously record others for sexual purposes,” or “create and store child sex abuse material.”

Second, because the camera contained lithium-ion batteries, Amazon's “Dangerous Goods Team” inspected the camera to ensure it complied with IATA Packing Instruction 966.

The third inspection of the camera was by Amazon's “Fulfillment by Amazon” program.

After these reviews, Amazon approved the camera for sale, and then approved the camera's product description which shows the camera serving as a towel hook with the caption: “It won't attract any attention[:] A very ordinary hook.”

Surreptitious Hook Camera in Private Bathroom

In 2021, M.S.—a minor—visited the United States as a foreign exchange student. She lived with Darrel Wells during her stay.

At some point, Darrel Wells ordered John Doe's hook camera from Amazon's website, and then installed the camera in M.S.'s private bathroom to capture unsolicited photographs of her.

Eventually, M.S. discovered the camera, and sued M.S. sued Amazon and John Doe for negligence, among other claims.

Negligence

To plead a negligence claim, a plaintiff typically must allege the defendant owed her a duty, the defendant breached that duty, and that the defendant's breach proximately caused her injuries.

The thrust of M.S.'s complaint is simple: Wells bought a hidden camera from Amazon.com and used it exactly as advertised.

In ruling on a motion to dismiss, the Court held that M.S. had plausibly pled a negligence claim.

She alleged Amazon owed her a duty to not promote or distribute products that present a “foreseeable and unreasonable risk of harm to others.”

Generally, a person does not have a duty to protect others from the deliberate criminal conduct of third parties. See Jones, 881 S.E.2d at 384 (quoting Miller v. Whitworth, 455 S.E.2d 821, 825 (1995)). Yet a duty of protection may arise if the person's “affirmative actions or omissions” expose others “to a foreseeable high risk of harm from the intentional misconduct.” Wal-Mart Stores East, L.P. v. Ankrom, 854 S.E.2d 257, 268 (W. Va. 2020) (quotation omitted). Foreseeability is key. See id.

Here, Amazon inspected John Doe's camera three times— including an inspection by Amazon's Product Safety team tasked with preventing the type of harm alleged here such as hidden cameras spying on individuals in private spaces. Amazon also exercised control over the camera's product description—including over the photographs encouraging using the camera in a private bathroom as a towel hook.

Collectively, these allegations “permit the inference” Amazon knew its actions and omissions might expose others to a foreseeable high risk a third party would use the camera exactly as advertised—to surreptitiously record an individual in a private bathroom by using the camera as a towel hook. Jones, 881 S.E.2d at 384. This is enough at this stage. See also Williams v. Bob Barker Co., 2023 WL 34545, at *4 (Jan. 4, 2023) (holding allegations of inadequate quality control can support a negligence claim on a motion to dismiss).

Next, despite this duty, the complaint alleged that Amazon promoted, marketed, sold, and distributed John Doe's camera. For example, marketing the hook camera alongside its product description “encourage[d] criminal conduct” and exposed others “to a foreseeable high risk of harm” when used to record individuals in sensitive locations—its “intended and marketed purpose.”

Citing In re Juul Labs, Inc., Marketing, Sales Practices, & Products Liability Litigation, 497 F. Supp. 3d 552 (N.D. Cal. 2020); Braun v. Soldier of Fortune Magazine, 968 F.2d 1110 (11th Cir. 1992); and Maynard v. Snapchat, 870 S.E.2d 739 (Ga. 2022); the Court concluded that “when a seller promotes a product suggesting a particular use, harms that result from that suggested use are foreseeable.”

The Court also concluded that use of the camera to capture private moments in a private space was a foreseeable use, and “[t]o argue otherwise “strains credulity,” citing United States v. Boam, 69 F.4th 601, 610 (9th Cir. 2023) (rejecting argument a hidden camera trained on a bathroom medicine cabinet will not capture nudity).

Amazon's shock cannot evade liability.

Wells used the camera “precisely as depicted on Amazon's online retail store,” and the Court found it plausible that M.S. suffered emotional and physical harm.

These allegations raise a reasonable inference Amazon sold a camera knowing it would be used to record a third party in a bathroom without their consent. Cf. Kyllo United States, 533 U.S. 27, 38 (2001) (describing privacy concerns implicated when technology reveals “intimate” details like the “hour each night the lady of the house takes her daily sauna and bath”). At this stage, “nothing more” is required. Rogers v. Tarbox, 2023 WL 2842879, at *3 (S.D. W. Va. Apr. 7, 2023) (discussing the low bar for “garden variety negligence claim[s]” at the pleading stage)

Having found that M.S. adequately pleads duty, breach, causation, and harm; the Court denied Amazon's motion to dismiss as to negligence.

Professor Goldman noted that “the court's analysis could indicate that all surreptitious hook cameras are categorically illegal to sell, even when buyers plan to use it completely legally,” which “makes this a dangerous ruling for the spycam industry and for Amazon.”

Thomas P. Howard, LLC litigates nationwide including in Colorado.