Dunstan et al v. comScore, Inc.

Filing 156

DECLARATION of Jay Edelson regarding memorandum in support of motion 154 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit s, # 20 Exhibit t)(Thomassen, Benjamin)

EXHIBIT A
[FILED PARTIALLY UNDER SEAL]

1
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of
a class of similarly situated
individuals,
vs.

Plaintiffs,

COMSCORE, INC., a Delaware
corporation,
Defendant.

)
)
)
)
)
)
) Case No. 1:11-5807
)
)
)
)
)

*** CONFIDENTIAL -- ATTORNEYS' EYES ONLY ***

The 30(b)(6) deposition of COMSCORE, INC.
by MICHAEL BROWN, called for examination, taken
pursuant to the Federal Rules of Civil Procedure of
the United States District Courts pertaining to the
taking of depositions, taken before JENNIFER L.
WIESCH, CSR No. 84-4528, a Notary Public within and
for the County of Will, State of Illinois, and a
Certified Shorthand Reporter of said state, at 350
North LaSalle Street, Suite 1300, Chicago, Illinois,
on the 15th day of August, A.D. 2012, at 9:36 a.m.

Job No: 26674

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

9
MICHAEL BROWN

1
2

A.

Panelists are people that have accepted

3

and consented to install our software, take part of

4

our research program.

5
6

Q.

Okay.

who's "our"?

And when you say "our software,"

Who are you referring to?

7

A.

comScore's.

8

Q.

comScore's software.

9

Okay.

Does

comScore's software have any kind of technical name?

10

A.

Yes.

11

Q.

What is that name?

12

A.

Internally we refer to that code as the

13

OSSProxy project.

14

as CProxy.

15

engineering.

16
17

Q.

It's also sometimes referred to

That's the two generic names within

You've mentioned you've been deposed

before?

18

A.

Yes, sir.

19

Q.

Have you ever been a defendant in a

20

lawsuit?

21

MR. SCHAPIRO:

22

MR. BALABANIAN:

23
24

Personally or -Personally.

BY THE WITNESS:
A.

Yes.

25

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

62
MICHAEL BROWN

1

Q.

2

So I thought just a second ago that you

3

said that the software upgrade that superseded

4

NSCheck came about in 2003.

5

two?

6

A.

Sure.

7

Q.

Please do so.

8

A.

Okay.

Can you reconcile the

9
10

The functionality of NSCheck was

incorporated into OSSProxy in 2003.

Is that more

clear, sir?
Q.

11

Uh-huh.

So in 2001, is it correct to say

12

that panelists were given the option of upgrading to

13

OSSProxy from NSCheck?

14

A.

No.

15

Q.

Why would that be inaccurate?

16

A.

I believe the question you asked me

17

was -- the first one was the first version of

18

OSSProxy, and that was in 2001.

19

wasn't installed at that point to panelists in that

20

year.

21

Q.

When was the first -- withdrawn.

When did OSSProxy first get installed in

22
23

Okay.

We didn't -- it

panelists' systems?

24

A.

That was in 2002.

25

Q.

So there was a test phase of OSSProxy
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

74
MICHAEL BROWN

1
2

Q.

What other things?

3

A.

Knowing that they were in existence from

4

having conversations with internal attorneys.
MR. BALABANIAN:

5

I want to take a break.

6

(WHEREUPON, a recess was had from

7

10:59 a.m. to 11:11 a.m.)

8

BY MR. BALABANIAN:
Q.

9

Mr. Brown, I just want to close out a

10

couple things that we talked about, that we were

11

talking about.

12

obvious, but you said that comScore designed

13

OSSProxy, and you said TMRG did not, VoiceFive did

14

not.

15

CreativeKnowledge did or did not.

16

you have an answer to that?

And I think I want to cover the

I don't know if I asked you if
Would you -- do

17

A.

comScore designed OSSProxy.

18

Q.

Solely?

19

A.

Yes.

20

Q.

Okay.

21

So none of its subsidiaries

designed it?

22

A.

Correct.

23

Q.

Okay.

Do any of comScore's subsidiaries,

24

the ones we just named or others, do they receive

25

data from OSS -- gathered by OSSProxy?
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

75
MICHAEL BROWN

1
2
3

A.

Sir, we discussed multiple different

companies, so --

4

Q.

Well, take them one by one.

5

A.

Thank you, sir.

6

Q.

That's easier.

7

A.

Appreciate that.

8

Q.

TMRG, Incorporated, do you know whether

9

TMRG, Incorporated ever received panelist data?

Let

10

me withdraw that real quick.

I want to clarify a

11

couple of things.

12

going forward, I'm talking about software panelists,

13

I'm not talking about survey panelists.

When I talk about panelists today

14

A.

Okay.

15

Q.

Okay?

16

A.

Thank you.

17

Q.

So when I say panelists, I'm talking

18

about software panelists, those individuals who

19

have --

20

A.

So from this point forward, until

21

anything else changes, the definition of a panelist

22

is panelists with comScore's software on them?

23

Q.

On their system, correct.

Okay?

24

A.

Yes.

25

Q.

So with respect to TMRG, do you know

Thank you for the clarification.

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

1
2

whether that company ever receives panelist data

3

from OSSProxy?

4

A.

No.

5

Q.

What about VoiceFive, is your answer that

6

you don't know or that, no, they don't receive

7

panelist data?

8

A.

No, they don't receive panelist data.

9

Q.

Okay.

How about VoiceFive Networks, do

10

you know whether they receive panelist data from

11

OSSProxy?

12

A.

The company does not.

13

Q.

Does not.

14

What about CreativeKnowledge,

Incorporated, same question?

15

A.

The company does not.

16

Q.

What about Knowledge Networks,

17

Incorporated, same question?

18

A.

The company does not.

19

Q.

Sears Holding Management Corp., I think

20

you said you don't know if that's a comScore

21

subsidiary?

22

A.

I don't know about that.

23

Q.

Okay.

24
25

So you don't know one way or

another whether they would receive panelist data -A.

That is correct.
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

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MICHAEL BROWN

1
2

Q.

-- from OSSProxy?

Okay.

3

With respect to TMRG, do you know whether

4

they deploy OSSProxy to potential panelists, whether

5

they offer to deploy it to potential panelists?

6
7

A.

I'm thinking, sir.

Sorry, can I ask you

to repeat the question again, sir?

8

Q.

Sure.

9

A.

I'm sorry.

10

Q.

Why don't we rephrase it slightly.

11

Might

make it easier.

12

A.

Thank you.

13

Q.

Does comScore deploy OSSProxy directly to

14

panelists, or is it done through the subsidiaries?

15

A.

comScore deploys the software.

16

Q.

Directly to its panelists?

17

A.

Yes.

18

Q.

Okay.

19
20

So I said the word deploy.

What's

your understanding of that word?
A.

My understanding of that word in the

21

context of the question is that it validates terms

22

of service that have been accepted, downloads the

23

software, it installs the software, configures the

24

software to operate properly on that machine,

25

maintains that software.
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

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MICHAEL BROWN

1

Q.

2
3
4
5

Okay.

Right.

So let's take it one at a

time.
MR. BALABANIAN:

Actually, can you read back

his answer.

6

(WHEREUPON, the record was read by

7

the reporter.)

8
9

BY MR. BALABANIAN:
Q.

So with respect to confirming that a

10

panelist has accepted the terms of service of

11

OSSProxy, comScore directly confirms that a panelist

12

has accepted the terms of service of OSSProxy;

13

correct?

14

A.

Yes.

15

Q.

With respect to the installation of the

16

software on the panelist's system, comScore is the

17

company that is responsible for installing the

18

software onto its panelists' systems; correct?

19

A.

Yes.

20

Q.

With respect to the download of the

21

software, to the extent that's any different than

22

the installation of the software, onto panelists'

23

systems, comScore ensures that the software has been

24

downloaded; correct?

25

A.

Yes.
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

1
2

Q.

With respect to configuring OSSProxy onto

3

panelists' systems, comScore's responsible for such

4

configurations; correct?

5

A.

Yes.

6

Q.

With respect to the maintenance of

7

OSSProxy on panelists' systems, comScore is

8

responsible for maintaining OSSProxy on those

9

systems; correct?

10

A.

Yes.

11

Q.

The subsidiaries that we went through,

12

TMRG, VoiceFive Networks, CreativeKnowledge,

13

Knowledge Networks, Incorporated, do they have any

14

role based on your understanding of confirming that

15

the terms of service have been accepted by panelists

16

for OSSProxy?

17

A.

They do have a role.

18

Q.

What role?

19

A.

Within the panelists, we have multiple

20

brands, and those -- the OSSProxy is installed

21

respective to the brand that is associated to those

22

entities.

23

Q.

Okay.

But how does that answer my

24

question with respect to them confirming a

25

panelist's acceptance of OSSProxy?
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

90
MICHAEL BROWN

1
2

A.

I'm unclear on that.

3

Q.

Okay.

4

88Circle, does that run -- did

that -- does that run OSSProxy?

5

A.

Yes.

6

Q.

PremierOpinion, does that run OSSProxy?

7

A.

Yes.

8

Q.

KN Connection, does that run OSSProxy?

9

A.

Yes.

10

Q.

Impact Network Online, does that run

11

OSSProxy?

12

A.

Yes.

13

Q.

So all of these various brands run the

14

same software?

15

A.

Yes.

16

Q.

Okay.

17

A.

Yes.

18

Q.

So with respect to the software itself

Which is all OSSProxy?

19

spread across the various brands, the difference is

20

the brand names?

21

A.

No.

22

Q.

Okay.

23

A.

Yes.

24

Q.

What are the differences between

25

There are other differences?

RelevantKnowledge -- OSSProxy that runs on -DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

1
2

withdrawn.

3

What are the differences in OSSProxy as

4

it relates to RelevantKnowledge and OpinionSquare?

5

A.

There are none.

6

Q.

There are none.

7

between RelevantKnowledge -- sorry.
What are the differences between OSSProxy

8
9
10

What are the differences

as it relates to RelevantKnowledge and
PermissionResearch?

11

A.

None.

12

Q.

Well --

13

A.

Just add a clarification to this, and I

14

think I talked about this earlier in the deposition,

15

if that's cool, acceptable.

16

Q.

Go ahead.

17

A.

When the software is installed, it's

18

installed with respect to the respective brand.

19

for example, the icon is consistent with the brand,

20

the name is consistent with the brand --

21

Q.

Okay.

22

A.

-- so --

23

Q.

So --

24

A.

But the -- so the core software is the

So,

25

same, it's just there's brand specific -DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

1
2

Q.

Got it.

3

A.

I just want to add that in there when

4

So --

you're asking the question.
Q.

5

I understand, and it helped.

Aside from

6

your qualification, there are no other real

7

differences amongst the brands?

8

A.

In regard to the software, that is true.

9

Q.

Correct.

THE WITNESS:

10

Okay.
Sir, do you mind, when it's

11

convenient, it's not an urgent, I'd like to take a

12

small break for -- visit the restroom.

13

MR. BALABANIAN:

14

THE WITNESS:

Then we'll take one.

Thank you so much.

15

(WHEREUPON, a recess was had from

16

11:38 a.m. to 11:44 a.m.)

17

BY MR. BALABANIAN:
Q.

18

I want to talk about the ways in which

19

panelists download OSSProxy onto their systems.

20

Okay?

21

A.

Okay.

22

Q.

My understanding is there's -- there's

23

basically two ways that a panelist can download

24

software, the OSSProxy software, onto their system

25

either directly from comScore or one of its
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

1
2
3

Q.

What you said, the process isn't the same

across all third-party software bundling partners.

4

A.

Correct.

5

Q.

How is it different?

6
7
8
9
10

What's the

differences?
A.

There was another one that does not use

the RK verify process.
Q.

What do you mean, another one that does

not use --

11

A.

Another brand.

12

Q.

What brand?

13

A.

PremierOpinion.

14

Q.

Why doesn't that use the RK verify

15

process?

16

A.

PremierOpinion is reserved for currently

17

two providers that have a long and known,

18

established history with comScore, that have been

19

validated, so their installation process is

20

different.

21

compatible with RK verify, so that is why they are

22

executed under the RK -- that RK verify is not

23

required, so it uses something like similar to the

24

PremierOpinion name, but it still has an ID, still

25

has those checks, still goes through QA, still goes

That does not support -- is not

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

1
2

through legal, still is monitored.
Q.

3
4

Who are those two partners that does use

RK verify?
A.

5

I don't recall the exact names of them.

6

I believe one of those is Uber, but I do not recall

7

the second one.

8

head.

Sorry, sir, I don't -- not off my

9

Q.

Are those the only differences?

10

A.

Yes.

11

(WHEREUPON, a certain document was

12

marked Brown Exhibit 3, for

13

identification.)

14
15

BY MR. BALABANIAN:
Q.

Okay.

I'm handing you what's been marked

16

as Brown Exhibit 3.

Please take your time looking

17

at the document and getting familiar with it.

18

going to ask you some questions.

I'm

19

A.

Thank you, sir, for letting me review.

20

Q.

Sure.

21

Have you ever seen Brown Exhibit 3

before today?

22

A.

Yes.

23

Q.

Can you recall the first time that you

24
25

saw it?
A.

I don't recall the exact first date I saw
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

1
2

Q.

-- subsidiaries -- go ahead.

3

A.

The wording you're using is not the same

4

words I would use.

There is registration sites that

5

execute QA's prescribed process --

6

Q.

Okay.

7

A.

-- if things have been completed, as in

8

the viewing of the terms of service, some of the

9

privacy disclosures, even for any information that's

10

captured about like, for example, their name,

11

address, those all have to happen -- those are

12

all -- happen, and the disclosure happens first.

13

After that is completed, then the install the

14

software is driven through the web page to install

15

in a machine, similar in the manner of how you would

16

install the Google toolbar off of its website.
Q.

17

And do you know who -- which websites

18

allow for direct registration like you just talked

19

about?

20

A.

If we walk through that list of the ones

21

you enumerated earlier, I could tell you which ones

22

are which.

23

Q.

RelevantKnowledge?

24

A.

No.

25

Q.

OpinionSquare?
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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2
3

BY MR. BALABANIAN:
Q.

Mr. Brown, I want to briefly touch upon

4

some issues related to the Mac panelists.

We just

5

got done talking about Mac panelists and how they

6

were -- how they registered for the OSSProxy

7

software, but I skipped a couple things that I think

8

are important.
The OSSProxy software for Mac panelists,

9
10

was it different than OSSProxy for the PC panelists?

11

And when I say that, was it designed to collect

12

different things, or was it designed to collect the

13

same things?

14

A.

Do you understand?

I do.

So first of all, just a

15

clarification, this is just one bundle provider, not

16

all bundle providers --

17

Q.

Right.

18

A.

-- went through this method.

19

Q.

Right.

20

A.

Okay.

21

Q.

Okay.

22

A.

-- just for the item in here -- and in

So --

23

discussion, I've got to mention this was just one

24

specific with regard to 7art Color Therapy.

25

this, I'm referencing Exhibit 4.

With

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

1
2

Q.

Okay.

3

A.

The goals of the Mac version of the

4

software was consistent, but the means of how we had

5

to collect were different, because it's a different

6

operating system, and you have to have different

7

design criteria based on those different operating

8

systems.

9

Q.

Okay.

But the goal of -- yeah, I'm

10

sorry.

11

collecting the software was the same?

12
13

What do you mean by the goal, the goal of

A.

You wanted to measure their online -- the

goal was to measure their online activity --

14

Q.

Okay.

15

A.

-- on both the Mac and the PC.

16

Q.

So both the Mac and the PC OSSProxy was

17

designed to capture the same types of digital data?

18

A.

Yes.

19

Q.

Okay.

How about the -- we talked earlier

20

about the ways in which panelists can install

21

OSSProxy, and so I was referring to a PC panelist,

22

and we talked about the two; and in the case of one

23

brand, the three ways in which panelists could

24

register for the software.

25

process -- the registration process, I should say,

Was the installation

DAVID FELDMAN WORLDWIDE, INC.
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2
3

was it the same more or less for Mac panelists?
A.

I believe for the Mac panelists, we

4

offered -- I know we offered it through third-party

5

application providers.

6

also -- the registration flow from the website was

7

also offered.

8
9

Q.

I think registration was

Do you know if there were any other ways

in which Mac panelists could register with --

10

A.

No.

11

Q.

-- the software?

So those two ways.

So then the installation process itself

12
13

as it relates to Mac panelists, did it follow the

14

same process that we covered earlier with respect to

15

PC panelists --

16

A.

Go ahead, I'm sorry.

17

Q.

-- with the exception of Exhibit 4 that

18
19

we just talked about?
A.

So the way I would answer that question

20

is the Mac version was -- to the PremierOpinion,

21

there was no RK verify portion, but, yes, it was

22

consistent --

23

Q.

Okay.

24

A.

-- from that perspective.

25

Q.

Okay.

Was there any differences that --

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MICHAEL BROWN

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2

any material differences in the ways in which people

3

registered as a Mac panelist as far as the process

4

was concerned?

5

A.

I mean, other than it was on a Mac versus

6

a PC, and the inherent differences in those

7

operating systems of how you interact with software,

8

there's nothing beyond that.

9
10

Q.

Okay.

Was -- for Mac panelists, was

there one OSS -- was -- withdrawn.

Strike that.

11

For Mac panelists, was there one version

12

of OSSProxy software, or did -- was there different

13

versions across various brands?

14

were -- there were several brands as it related to

15

Mac panelists as well, is that correct?

16

A.

I assume there

So just to help in clarification, and

17

maybe from a terminology or lexicon, we would -- we

18

call that the MacMeter versus OSSProxy, so to us,

19

OSSProxy is the code line for Windows machines, and

20

the MacMeter is the code line for Mac machines.

21

think that might help to --

22

Q.

Thank you.

23

A.

-- to -- for clarification purposes.

24

Q.

It does.

25

A.

There were multiple versions of the
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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2
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brands?
A.

My understanding is we have one terms of

4

service per brand, and both versions, but whether --

5

when MacMeter was in existence and CProxy -- or

6

OSSProxy, I should say, conformed to those terms of

7

service.

8

Q.

9

service?

10

A.

Yes.

11

Q.

Are you familiar with each brand's terms

12

So each brand has its own terms of

of service?

13

A.

Yes.

14

Q.

Okay.

Even though the -- each brand has

15

terms of -- each brand has their own terms of

16

service, is it fair to say that the terms are more

17

or less the same regardless of the brand?

18
19
20
21
22

A.

May I -- do you want me to answer the

question, then look at this or -Q.

No.

I want you to answer the question

and then -MR. SCHAPIRO:

I don't think you've

23

said anything on the record about the exhibit, or

24

you're not --

25

MR. BALABANIAN:

I'm not asking --

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MR. SCHAPIRO:

3

MR. BALABANIAN:

4

MR. SCHAPIRO:

5

MR. BALABANIAN:

-- going to --- him just yet.
Okay.
I just gave it to him.

6

not asking him about the exhibit yet.

7

I'm

BY THE WITNESS:

8
9
10
11
12

A.

I'm sorry, so --

BY MR. BALABANIAN:
Q.

So wouldn't you say that the terms are

more or less the same across the brands?
A.

Yes.

13

(WHEREUPON, a certain document was

14

marked Brown Exhibit 5, for

15

identification.)

16
17
18

BY MR. BALABANIAN:
Q.

I've handed you what's been marked as

Brown Exhibit 5.

19

A.

Okay.

20

Q.

Could you mark it?

21

A.

Yes.

22

Q.

And take your time to review the

23

document --

24

A.

Thank you.

25

Q.

-- to familiarize yourself with it,
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please.

3

A.

Thank you, sir.

4

Q.

You've got to give me one second.

5

These

don't have page numbers on them, so bear with me.

6

A.

Sure.

7

Q.

Do you recognize Brown Exhibit 5,

8

Mr. Brown?
A.

10

Okay.

A.

This is an XML file containing the

from.

11
12

I have a -- I know where this is -- come

Q.

9

Can you tell me what you think it

is?

13
14

different pieces of the terms of service or URL

15

agreement for multiple brands in multiple languages.
Q.

16

Okay.

And are these the terms of service

17

that govern the installation of OSSProxy and

18

MacMeter?
A.

20
21

It is the terms of service that govern,

Q.

19

Okay.

yes.
I'd like to just go through some

22

of the points on it, because I'm very unclear on

23

certain things.

24

A.

Sure.

25

MR. SCHAPIRO:

Objection.

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2
3
4
5
6
7
8

BY MR. BALABANIAN:
Q.

First of all, who would you say these

terms of service are between?
A.

They're between the analysts and the

brand they signed up for.
Q.

Okay.

Do you know if comScore is

referenced in these terms of service?

9

A.

Do you mind if I take a look, sir?

10

Q.

Sure.

And I'll give you a hint.

In the

11

first paragraph, I know comScore's referenced, so

12

there's one spot, but you can keep looking.

13
14
15
16
17
18
19
20
21

A.

There you go, so, yes, comScore is

referenced.
Q.

And just so you know, I'm going to

concentrate on the first six pages of this document.
A.

Thank you.

I would struggle with the

Chinese version.
Q.

As would I.

I have my problems with the

English version as well.
Do you see in the second paragraph on the

22

very first page, the sentence that says, "While

23

participation in our program will allow us to send

24

you periodic surveys and track information about

25

your online activity, such as where you surf and" -DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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2

program?
MR. SCHAPIRO:

3
4

conclusion.

5

Objection, calls for a legal

BY MR. BALABANIAN:
Q.

6

Well, if you -- and I wasn't asking a

7

question.

8

that.

9

service out there that would somehow govern that

10

You testified earlier that it governs

Do you know if there's any other terms of

relationship?

11

A.

It would be this that --

12

Q.

This is the --

13

A.

-- describe -- this is the entirety

14

from -Q.

15

Okay.

So there's no other terms of

16

service that comScore would say applies or that the

17

subsidiaries can say applies, these are them?

18

A.

That is correct.

19

Q.

It might be an obvious question --

20

A.

I'm just trying to answer your question,

Q.

I want to talk about the -- what

21

sir.

22
23

information is collected as set forth in these

24

terms.

25

A.

Okay.
DAVID FELDMAN WORLDWIDE, INC.
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A.

Okay.

3

Q.

Or by OSSProxy collecting it after the

4

panelist has accepted the terms of service and

5

downloaded it onto the system?

6

A.

7

question, sir.

8

Q.

9

I just want to make sure I answer your

Any other ways that basic demographic

information is collected?

10

A.

Yes.

11

Q.

What are those ways?

12

A.

In some cases, we will take the address

13

and use a third-party -- secure third-party matching

14

provider to understand the information about that.

15

Q.

So you'll match information that you have

16

with other information that perhaps one of your

17

business -- a company with whom you do business has

18

or that -- paint a more clear --

19

A.

Or a company that does -- that you send

20

the set of addresses to, and they tell you

21

additional information about --

22

Q.

Okay.

23

A.

-- that household if they have

24

information about that household.

25

It's not done

with a client.
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make commercially viable efforts to automatically

3

filter confidential, personally identifiable

4

information such as user ID, password, credit card

5

numbers and account numbers."

6

A.

I do.

7

Q.

Okay.

Do you see that?

Can you explain to me what you

8

guys mean -- what the -- what RelevantKnowledge

9

means by commercially viable efforts?

10
11

A.

Can I explain to you the protections that

we put in place for that --

12

Q.

Okay.

13

A.

-- that comes across all brands?

14

Is that

acceptable?

15

Q.

We'll see.

16

A.

Okay.

Go ahead.

So what we've done is we've

17

implemented a set of routines that we call

18

fuzzifier.

19

posted to a website and then also on web pages that

20

we've blocked, that runs using algorithms to read

21

through that data to identify things that look like,

22

for example, credit card numbers or user IDs or

23

passwords.

24

looking for 15 and 16 digit sequences, and then we

25

destroy a chunk of that data so that we do not have

Fuzzifier operates on both data that's

Credit card numbers can be identified by

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3

the credit card number transmitted to our servers.
Q.

Okay.

So it says "commercially viable

4

efforts to automatically filter."

5

talked about safeguards.

6

automatically filtered?

7

understanding of that?

8

A.

9

unclear.

Yes.

We've sort of

What is meant by
Do you have an

That's the -- I'm sorry if I was

The method I was talking about as

10

fuzzification is automatic and is running and has

11

algorithms that we've -- that have been developed to

12

run on the end user's machine so that that data

13

never leaves that end user's -- or the panelist's

14

computer, so, therefore, it's automatic.

15

Q.

So comScore doesn't get that information?

16

Even if it's fuzzified, it doesn't get it in a

17

fuzzified form?

18

A.

Correct.

19

Q.

It never leaves the user's computer?

20

A.

Correct.

21

Q.

Okay.

If you read on, the last sentence

22

of that paragraph says, "Inadvertently we may

23

collect such information about our panelists.

24

when this happens, we make commercially viable

25

efforts to purge our database of such information."

And

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demographic information or information regarding

3

usage of the application; and of any changes made to

4

this agreement."

5

sir?

6

A.

Yes.

7

Q.

Okay.

Did I read that all accurately,

8

So does comScore have the ability

to send administrative e-mails to panelists?

9

A.

Yes.

10

Q.

Okay.

And panelists with the software

11

installed on their systems have the ability to

12

receive administrative e-mails or other e-mails from

13

comScore?

14

A.

That's unclear, sir.

15

Q.

Well, one of the commitments as a

16

panelist is to receive administrative e-mails --

17

A.

That is correct.

18

Q.

-- correct?
Okay.

19
20

So comScore has the ability to

send e-mails to its panelists, right?

21

A.

That is correct.

22

Q.

Okay.

23

Do you know whether comScore does

send e-mails to its panelists?

24

A.

It does.

25

Q.

In what instances does it send e-mails?
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A.

2

To invite them to participate in a

3

survey, to tell them if they won a prize, those are

4

some of the instances.
Q.

5
6

Do panelists give comScore their e-mail

addresses?

7

A.

Yes.

8

Q.

During the registration process?

9

A.

That is one place they can.

10

Q.

Does the software collect that

11

information as well that's running on the system?

12

A.

No.

13

Q.

Okay.

I should ask a different question.

14

How are the ways in which comScore obtains e-mails

15

from its panelists -A.

That is used in reference to 11, one,

18

Q.

No, just --

19

A.

Or more specifically 11, one, five?

20

Q.

Yeah.

16
17

one?

Well, I'm just saying how does --

21

how does -- panelists provide their e-mails in the

22

registration process, that's one way comScore gets

23

e-mails?

24

A.

Correct.

25

Q.

Are there other ways it gets e-mails?
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the representation of the date the data was

3

received.

4

Q.

Okay.

5

A.

Other things you'll see is -- the very

6

top, you'll see a unique hash of track information.

7

We take the name of the trunk and information about

8

it, we run it through an MD5 hash algorithm to

9

create the unique ID for it.

10
11
12

Q.

And do you parse where the track came

from; i.e., the device that it came from?
A.

The kind -- if you look at the column of

13

Kind, the column named Kind indicates the location

14

of that track.

15

Q.

16

Okay.

So if that -- if that track were

on an iPod, it would identify that location?

17

A.

That is correct.

18

Q.

Okay.

19

Can you flip to Bates No. 15923 in

Brown Exhibit 6.

20

A.

Yes.

21

Q.

You see in the middle of the page where

22

it says "OSSProxy Rules"?

23

A.

Yes.

24

Q.

Can you just describe for me generally

25

what is meant by OSSProxy Rules?
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A.

The software project OSSProxy, also

3

MacMeter, is designed to reference configuration

4

information from a remote re -- my tongue is just

5

losing -- remote locate -- remote resource like a

6

URL, so the information and -- of the types of

7

things we want to do or collect can be configured

8

and adjusted quickly without requiring a new version

9

of the software to be deployed.

10

Q.

Well, first, the rules, is that another

11

way of saying instructions, instructions to the

12

software?

13

A.

I don't think it's really -- like in my

14

personal opinion from the computer science

15

definition of things, I think the rules are more

16

like definitions or lists --

17

Q.

Okay.

18

A.

-- versus instructions.

There's --

19

instructions to me indicates something that like has

20

an if-then conditional, and these do not have

21

embedded in that if-then conditional type of things.

22

Q.

Do you see in the written text under

23

OSSProxy slash CProxy Rules, there is two paragraphs

24

right under that subheading?

25

A.

Do you see that?

I do.
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explain why the rule would be outdated because now

3

traffic is no longer routed to comScore's proxy

4

servers?

5

A.

It's outdated because we no longer use

6

proxy servers, so, therefore, there's no need to

7

route traffic to proxy servers.

8

Q.

When did comScore stop using proxy

9

servers?

10

A.

2005.

11

Q.

Why did it stop?

12

A.

We decided to upgrade the functionality

13

of our software to no longer require using proxy

14

servers.

15

Q.

What's a proxy server?

16

A.

Proxy server is a piece of software that

17

runs on a set of servers that receives requests from

18

clients; in our case, panelists receive that request

19

and initiate a new request on behalf of that

20

requester to a target server; that data is then

21

returned back to that proxy server, and that data is

22

then sent from that proxy server to the respective

23

client.

24

Q.

It's like an intermediary server?

25

A.

Correct.

It is acting as an

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3

intermediary.
Q.

So now is the -- is the data just

4

directly sent to comScore's servers instead of

5

routed through a proxy server?

6

A.

In the case of the proxy server, all --

7

all -- give me a second.

I'm trying to think of the

8

best way to explain this.

9

selectively to our proxy servers, and when we are

10

operating with proxy servers prior, including and

11

prior to 2005.

12

locally, the rules are executed locally on the

13

panelist's computer, so the information of interest

14

gets sent to comScore's servers.

Data would be routed

With the CProxy running 100 percent

15

Q.

From the panelist's computer?

16

A.

From the panelist's computer, correct.

17

Q.

Okay.

18

Can you turn your attention to

kind of halfway down the page where it says XPF.

19

A.

Yes.

20

Q.

Do you know what XPF is?

21

A.

I know what XPF is in relation to this

22

document, and specifically within this section of

23

the document.

24

Q.

Okay.

25

A.

Can you explain it to me --

Sure.
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of information.

You have to look for two pieces to

3

see if that DLL is valid; it has to be present and

4

registered.
THE WITNESS:

5

If you guys don't mind, I'd like

6

to take a break when there's an opportune time.

7

know you're in the vain here, not urgent, I'd just

8

like to --

9

MR. BALABANIAN:

10

afraid I'm finishing.

11

I

Yeah, we're just -- I'm

about five minutes.

Let's take one now.

How

12

(WHEREUPON, a recess was had from

13

3:59 p.m. to 4:06 p.m.)

14

BY MR. BALABANIAN:
Q.

15

Why does comScore fuzzify data?

16

it collect fuzzified data?

17

Why does

collect the data at all?
A.

18
19

Why doesn't it just not

You've got a couple questions in there.

Do you want to break it down into a couple --

20

Q.

Yeah.

21

A.

We can take it one by one if you wish.

22

Q.

Yeah.

A.

We collect fuzzified data because we

23
24
25

Why does it collect fuzzified

data?

don't want to collect data that would be harmful or
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identify who that panelist is, you know.

The last

3

thing we want to have is a list of credit card

4

numbers from panelists.

5

panelist and exposure for us.

That's an exposure for the

6

Q.

It's important to filter the information?

7

A.

In this case, we're not talking about

8

filtering the information, we're talking about

9

changing the information.

So in this case, with

10

respect to this, we're changing the information in a

11

one-way manner that's not reversible; that is the

12

goal of fuzzification.

13
14
15
16

Q.

Filtering and fuzzifying are two

different things?
A.

In my opinion, filtering and fuzzifying

are two different things.

17

Q.

18

at all, right?

19

A.

20

Filtering is just not accepting the data

That is one possible -- that is one

possible interpretation of the word filter.

21

Q.

Can you flip to 15930, Mr. Brown?

22

A.

Yes, I am there.

23

section?

24

Q.

25

Is there a particular

Actually, 15929 is where I'd like you to

start, sorry, in the very bottom.

I'm looking at

DAVID FELDMAN WORLDWIDE, INC.
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BY MR. BALABANIAN:

3

Q.

Can you flip to 15958, please.

4

A.

Yes, sir.

5

Q.

Do you see towards the bottom of the page

6

it says OSS underscore pre underscore install

7

underscore URLs?

8

A.

Yes.

9

Q.

Under that, it says, "Description," and

10

it reads, "Captures the last 25 URLs that the

11

panelist visited prior to installing CProxy."

12

A.

Yes.

13

Q.

What's that talking about?

14

A.

So as part of some of the audits that

15

comScore participates in, they wanted to make sure

16

that the panelists we were getting, that were coming

17

into our system, were not all coming from one or two

18

specific websites, so -- because that would add an

19

undue bias to the types of users that we discussed

20

briefly about bias and its impact on research.

21

way to validate that is after the -- when the

22

software is installed, OSSProxy is installed on a

23

user's computer, we look in the -- in the history,

24

the cache -- it's actually the cache of Internet

25

Explorer, and we look at the 25 most recently

So a

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visited URLs and report on that and capture that

3

data to understand if we have undue bias in our

4

recruiting system.

5
6

Q.

Is it something specific to Internet

Explorer?

7

A.

Yes.

8

Q.

So for other browsers, you don't capture

9

the last 25 URLs?

10

A.

That is correct.

11

Q.

Why Internet Explorer?

12

A.

It was easier to do that, and it met the

13

needs of -- the needs from research, because they

14

just -- it was enough of a cross section of a sample

15

to evaluate and control for bias.

16

MR. BALABANIAN:

Okay.

Yeah, so let's take

17

one more break.

I'm going to go through my notes to

18

see if I have, I think, a few follow-up questions.

19

Hopefully we'll be done by 5:00.

20

(WHEREUPON, a recess was had from

21

4:20 p.m. to 4:35 p.m.)

22

(WHEREUPON, a certain document was

23

marked Brown Exhibit 9, for

24

identification.)

25

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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2

reopen Mr. Brown's deposition to the extent that's

3

necessary.

4

nothing further.

5

But aside from that, I have no --

MR. SCHAPIRO:

Okay.

Unless somebody waives

6

it, I don't think we have any questions for the

7

witness.

8
9
10

Because many, maybe even --

MR. BALABANIAN:

Do you want to mark it

confidential?
MR. SCHAPIRO:

Maybe most or all of the

11

documents were either confidential or attorneys'

12

eyes only, so I think we might want to designate the

13

transcript and the exhibits confidential, attorneys'

14

eyes only.

15

have a reasonable time to try and, you know, work

16

out if there are any disagreements about that.

17

at least for now I want the default to be that it's

18

confidential.

I gather under the ESI agreement, we

19

MR. BALABANIAN:

20

MR. SCHAPIRO:

21

MR. BALABANIAN:

22

THE WITNESS:

That's fine.

But

That's it.

Nothing else from us.
Thank you.

Thank you.

23

(WHEREUPON, at 4:56 p.m. the

24

deposition concluded.)

25

DAVID FELDMAN WORLDWIDE, INC.
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1

STATE OF ILLINOIS

)

2
3

)

COUNTY OF W I L L

SS:

)

4
5

I, JENNIFER L. WIESCH, do hereby certify:

6

That I am a duly qualified Certified

7

Shorthand Reporter, in and for the State of

8

Illinois, holder of certificate number 84-4528,

9

which is in full force and effect, and that I am

10

authorized to administer oaths and affirmations;

11

That the foregoing deposition testimony

12

of the herein named witness was taken before me at

13

the time and place herein set forth;

14

That prior to being examined, the witness

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named in the foregoing deposition was duly sworn or

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affirmed by me, to testify the truth, the whole

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truth, and nothing but the truth;

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That the testimony of the witness and all

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objections made at the time of the examination were

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recorded stenographically by me, and were thereafter

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transcribed under my direction and supervision;

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That the foregoing pages contain a full,

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true and accurate record of the proceedings and

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testimony to the best of my skill and ability;

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That prior to the completion of the
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