Introductory Note

 

Patently Apple presents the vast majority of the class action complaint filed by Cynthia O'Flaherty below untouched so that you could see the complaint for yourself. At the end of the complaint we'll present a few comments of our own on this matter and then open it up for you to join in via comments.

 

You could read the O'Flaherty case in its entirety, in part, or skip it to get to the debate. It's up to you – but at the end of the day, we ask that you try to participate in the conversation by expressing your opinion on this matter. Every opinion matters before Steve Jobs and others go before the Senate on May 10, 2011. Time is running out, so send in your comments and opinions as soon as you can.

 

Cynthia O'Flaherty: Class Action Complaint

 

Facts

 

Apple's iPhones and iPads are carried with users to essentially every location they travel to, making the information collected by Apple highly personal; indeed, in many instances it may be information to which employers and spouses are not privy.

 

All iPhones and iPads log, record and store users' locations based on latitude and longitude alongside a timestamp. These mobile computing devices store this information in a file named "consolidated.db", or a similarly named file. Apple intentionally began recording this information with the release of its iOS 4 operating system in June, 2010. Apple uses a cell-tower triangulation to obtain user location. Alternatively, Apple uses global positioning system (GPS) data to obtain user location.

 

Apple devices download the user location data to the user's computer when the mobile device synchronizes ("syncs") or shares data with the computer. The data is unencrypted on the mobile devices and also on users' computers that sync with those mobile devices.

 

Apple previously collected user location information through its applications, though not to the extent done by the iOS 4 operating system. In the iTunes terms of service, Apple explains that they "collect information such as occupation, language, zip code, area code, unique device identifier, location, and the time zone where an Apple product is used".

 

In its patent application for the iOS 4 operating system location-recording technology, Apple explained that the network information it collected could be accessed by an individual or an application to map the device user's location over time.

 

The network information can be converted to estimated position coordinates (e.g., latitude, longitude, altitude) of the location aware device. The position coordinates can be stored in a location history database on the location aware device or made accessible on a network. A user or application can query the location history database with a timestamp or other query to retrieve all or part of the location history for display in a map view.

 

The location history can be used to construct a travel timeline for the location aware device. The travel timeline can be displayed in a map view or used by location aware applications running on the location aware device or on a network. In some implementations, an Application Programming Interface (API) can be used by an application to query the location history database.

 

At this point, the Complaint states to "See U.S. Patent App. 20110051665." At the end of this report we show you how you could gain access to this patent for viewing. For now, see three key patent illustrations associated with Apple's patent application below.

 

 

The complaint continues by stating that: Users of Apple's iPhones and iPads, including Plaintiff and the putative Class, were unaware of Apple's tracking their locations.

 

Apple did not disclose that it comprehensively tracked its users in its terms of service. Plaintiff and other users did not provide any sort of informed consent to the tracking at issue in this case. Apple collected the private location information covertly, surreptitiously and in violation of law.

 

Apple collected and obtained Plaintiff's private location information by means of the operating system, by means of applications on Plaintiff's mobile devices and these mobile devices were serviced at Defendant's stores.

 

The accessibility of the unencrypted information collected by Apple places users at serious risk of privacy invasions, including stalking. Moreover, this secretly-gathered private information may be subpoenaed and become public in the course of any litigation, including divorce proceedings.

 

Plaintiff and the proposed Class members were harmed by Apple's accrual of personal location, movement and travel histories because their personal computers were used in ways they did not approve, and because they were personally tracked by a tracking device for which a court-ordered warrant would ordinarily be required.

 

Plaintiff and her proposed Classes suffered two different types of injuries. First, Plaintiff and her proposed Classes were injured and suffered a loss as a result of Apple's surreptitiously recording their customers' locations. Their private information was surreptitiously stored on their mobile devices and transferred, without their knowledge or consent, to other computers and to third parties. Second, Plaintiff and her Classes were injured by the risk of transfer of their location information to malicious third parties. By surreptitiously storing this information on their iPhone and transferring to other computers and to third parties by means of Apple Applications, Plaintiff and her proposed Classes face the risk of their private location information being obtained by malicious third parties and/or made public, for example, in the course of litigation. The damages incurred by Plaintiff and her proposed Classes exceed $5,000,000.00.

 

Count 1 – Computer Tampering

 

Plaintiff incorporates by reference all previous paragraphs of this Class Action Complaint as if fully as if fully set forth herein.

 

Class Allegations

 

Plaintiff's Class is defined as follows: all Illinois citizens who had a program or operating system installed on his or her iPhone or iPad by Defendant Apple that recorded their location surreptitiously, illegally and without their consent. Excluded from Plaintiff's Class are: (1) Defendant, its employees, and all persons who have or had a controlling interest in the Defendant corporation; (2) Defendants' legal representatives, predecessors, successors and assigns; (3) the judge who is assigned to this case and his/her immediate family; (4) Plaintiff's attorneys and their employees; (5) all persons who properly execute and file a timely request for exclusion from the class.

 

Plaintiff's proposed Class is comprised of thousands of Defendant's customers, the joinder of which is impracticable, and the members of the Class are so numerous that it is impractical to bring all of them before the Court in this action. Moreover, the amount of damages suffered individually by each member of the Class is so small as to make suit for its recovery by each individual member of the Class economically unfeasible.

 

Class treatment of the claims asserted herein will provide substantial benefit to both the parties and the court system. A well defined commonality of interests in the subject questions of law and fact affects Plaintiff and all proposed members of the Class.

 

There are common questions of law and fact applicable to the claims asserted on behalf of the Class. These common questions include but are not limited to:

 

(a) Whether Defendant knowingly and intentionally installed a program or operating system on the mobile computing device of Plaintiff and her proposed Class that altered, transferred and removed data;

 

(b) Whether Plaintiff and her proposed Class authorized Defendant to collect, alter and remove data from their mobile computing devices;

 

(c) Whether Plaintiff and her proposed class suffered a loss and incurred damages as a result of Defendant's collecting, altering and removing data from their mobile computing devices;

 

(d) Whether Defendant's actions were intentional, malicious and corrupt to such a degree to support an award of punitive damages.

 

These questions of law and fact predominate over any questions affecting only individual members of Plaintiff's class.

 

Plaintiff's claims are typical of the claims of the proposed Class, and Plaintiff will fairly and adequately represent and protect the interests of the proposed Class. Plaintiff does not have any interest antagonistic to those of the Class. Plaintiff has retained competent and experienced counsel in the prosecution of this type of litigation. The questions of law and fact common to the members of the Class, some of which are set out above, predominate over any questions affecting only individual members of the Class.

 

A class action is superior to other available methods for the fair and efficient adjudication of this controversy because members of the Class number in the thousands and individual joinder is impracticable. The expenses and burden of individual litigation would make it impracticable or impossible for proposed members of the Class to prosecute their claims individually. Trial of Plaintiff's claims is manageable.

 

Cause of Action

 

Illinois law provides:

 

(a) A person commits the offense of computer tampering when he knowingly and without the authorization of a computer's owner, as defined in Section 15-2 of this Code, or in excess of the authority granted to him:

 

(4) Inserts or attempts to insert a "program" into a computer or computer program knowing or having reason to believe that such "program" contains information or commands that will or may damage or destroy that computer, or any other computer subsequently accessing or being accessed by that computer, or that will or may alter, delete or remove a computer program or data from that computer, or any other computer program or data in a computer subsequently accessing or being accessed by that computer, or that will or may cause loss to the users of that computer or the users of a computer which accesses or which is accessed by such "program"[.] 720 ILCS 5/16D-3(a)(4). This law provides a civil cause of action for all individuals that suffer a loss by reason of violation of this provision 720 ILCS 5/16D-3(c). Violation of this law is a Class 4 felony for the first offense and a Class 3 felon for the second or subsequent offense. 720 ILCS 5/16D-3(b)(3).

 

Defendant Apple knowingly and without authorization installed a "program" or operating system on Plaintiff's iPhone, knowing or having reason to know that it would both alter, transfer and remove data from that mobile computing device, proximately causing Plaintiff and her proposed class to suffer a loss and incur damages in excess of $5,000,000.00.

 

VI. Count II – Illinois Consumer Fraud and Deceptive Business Practice Act

 

Class Allegations

 

Plaintiff's Class is defined as follows: all Illinois citizens who had a program or operating system installed on his or her iPhone or iPad by Defendant Apple that recorded their location surreptitiously, illegally and without their consent. Excluded from Plaintiff's Class are: (1) Defendant, its employees, and all persons who have or had a controlling interest in the Defendant corporation; (2) Defendants' legal representatives, predecessors, successors and assigns; (3) the judge who is assigned to this case and his/her immediate family; (4) Plaintiff's attorneys and their employees; (5) all persons who properly execute and file a timely request for exclusion from the class.

 

Plaintiff's proposed Class is comprised of thousands of Defendant's customers, the joinder of which is impracticable, and the members of the Class are so numerous that it is impractical to bring all of them before the Court in this action. Moreover, the amount of damages suffered individually by each member of the Class is so small as to make suit for its recovery by each individual member of the Class economically unfeasible.

 

Class treatment of the claims asserted herein will provide substantial benefit to both the parties and the court system. A well defined commonality of interests in the subject questions of law and fact affects Plaintiff and all proposed members of the Class.

 

There are common questions of law and fact applicable to the claims asserted on behalf of the Class. These common questions include but are not limited to:

 

(a) Whether Plaintiff and the putative Class were consumers of Defendant's merchandise, and whether they bought Apple's merchandise for personal or family use;

 

(b) Whether surreptitiously gathering, obtaining and transferring private location information without user authorization is an unfair business practice that violates the Illinois Consumer Fraud and Deceptive Business Practices Act;

 

(c) Defendant Apple omitted, concealed and suppressed the material fact that it collected, obtained and transferred the private location information of Plaintiff and her proposed Class;

 

(d) Whether Defendant acted with the intent for Plaintiff and the putative Class to rely on its omission, concealment and suppression;

 

(e) Whether Plaintiff and the putative Class suffered damages as a proximate result of Defendant's actions;

 

(f) Whether Defendant's actions were intentional, malicious and corrupt to such a degree to support an award of punitive damages. These questions of law and fact predominate over any questions affecting only individual members of Plaintiff's Class.

 

Plaintiff's claims are typical of the claims of the proposed Class, and Plaintiff will fairly and adequately represent and protect the interests of the proposed Class. Plaintiff does not have any interest antagonistic to those of the Class. Plaintiff has retained competent and experienced counsel in the prosecution of this type of litigation. The questions of law and fact common to the members of the Class, some of which are set out above, predominate over any questions affecting only individual members of the Class.

 

A class action is superior to other available methods for the fair and efficient adjudication of this controversy because members of the Class number in the thousands and individual joinder is impracticable. The expenses and burden of individual litigation would make it impracticable or impossible for proposed members of the Class to prosecute their claims individually. Trial of Plaintiff's claims is manageable.

 

Cause of Action

 

Plaintiff and the members of her proposed Class were consumers of Apple's merchandise, and they bought the subject mobile computing devices for personal or family use.

 

The Illinois Consumer Fraud and Deceptive Business Practices Act provides:

 

Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the "Uniform Deceptive Trade Practices Act", approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.

 

By surreptitiously installing a program on the mobile computing devices of Plaintiff and her proposed Class that recorded their location without their consent, Defendant Apple engaged in an unfair business.

 

Defendant Apple omitted, concealed and suppressed the material fact that it collected, obtained and transferred the private location information of Plaintiff and her proposed Class, and Defendant acted with the intent for Plaintiff and the putative Class to rely on that omission, concealment and suppression.

 

Defendant's violations of the Illinois Consumer Fraud Act occurred in the course of trade or commerce, and Plaintiff and her putative Class incurred damages in excess of $5,000,000.00 as a proximate result of Defendant's actions.

 

The case was filed in the United States District Court for Southern District of Illinois Eastern Division. The presiding Judge in this case is noted as being Judge Michael J. Reagan. To review patent application 20110051665, simply feed that number into this search engine.

 

Dispelling Conspiracies and the Bogeyman

 

Hysteria is quite the modern day phenomena on the web; someone decides to kick up a dust storm of controversy and the sheep go mad. A report by O'Reilly's Radar titled Apple is recording your moves stirred up a hornets' nest and sometimes that's good.

 

In this particular case, it actually forced Apple to make a statement that there was indeed a bug in their location based software that appears to have been gathering tracking information on your iPhone for a year and that it should have been set for something like seven days. Even though that contradicts Apple's patent which discusses tracking carried out "over time" – which is likely more than 7 days, I'll give Apple the benefit of the doubt because the statement is current and that the patent is well, just that, a patent. Apple has the right to make decisions on the fly as the market conditions demand and patents provide that flexibility to adapt to current times within the spirit and scope of the patent.

 

But then there are reports like the one from Gawker titled "Apple Patent Reveals Extensive Stalking Plans." It's a hysterical view that tries to paint and/or spin a conspiracy theory based on an open-to-the-public-patent for heaven's sake. It twists simple patent terminology like "remote servers" into a stalking server.

 

Imagine that - a tech writer who doesn't get the basic fundamentals of "cloud computing" or "cloud services." Apple openly promotes modern wireless services like "Maps + Compass" or "Find My iPhone." Apple also offers a way to tag photos that will of course use GPS tracking to execute that feature. And of course it will use cloud computing (servers) to accomplish this task just like everyone else's tracking programs in the business is doing. The term "remote server" shouldn't be seen as a bogeyman tool: That's simply sheer nonsense.

 

Another silly example from Gawker's report points to "financial transactions" and these scary "remote servers." Yes, Apple looks forward when crafting their patents and the concept of the iWallet or e-Wallet has been discussed for some time now. Thank goodness that someone is thinking ahead so that there's a financial transaction record that could be tracked or traced if your iPhone or iPad gets lost or to simply remind you where you made your last deposit and so forth. There is no bogeyman financial transactions server out there that's out to get you: ha!

 

Apple's Scott Forstall, Senior VP of iPhone Software discussed location services in depth as Apple was rolling out this product and/or service. It was made crystal clear at that time that the user could easily turn off location services and thereby cease all tracking capabilities of the device and/or service. We covered that event and particularly that subject over a year ago because we knew that this could be an issue going forward.

 

So it's a little hard for me to swallow that someone who really wants to buy an iPhone wouldn't first look into the features of the device and look at the software that it offers as is fully laid out in depth on Apple's website. On several webpages Apple clearly points to apps that would use tracking, like Compass + Maps. How else could the iPhone direct a user on a map without using some form of tracking mechanism? So being oh-so shocked about tracking functions and suing over it rings disingenuous to say the least.

 

Yet Questions Remain and Better Solutions are Needed

 

I don't want to make it like I'm not concerned over privacy because I most definitely am. I personally go out of my way to make sure that I don't give out too much private data to companies and try to limit the information wherever possible. I also go out of my way to flag patents that are making statements that raise my eyebrow legitimately. One such example is a patent that goes well beyond location services and into the territory of user profiling. With Apple's new iAd business, we could see that there might be a conflict of interest brewing when it comes to gathering user profiling information. Apple may keep that private – but then they shouldn't be surprised when it raises concerns in the public.

 

At the end of the day, bloggers try to point out facts that we may see as troubling. Even Gawker may have tried to do this – but simply overplayed their hand so as to plug into the frenzy that broke out on this subject. We all get a little off-course sometimes when covering a hot topic. But there has to be a balance of keeping Apple's feet to the fire and yet understanding that there's legitimate reasoning for why location services exist in the first place. If your child got lost and had an iPhone with location services on it, the authorities would likely be able to track your child down quickly and hopefully keep them from harm's way. Is that evil? No – of course not.

 

On the other hand, Apple's black and white solution of turning location services off or keeping them on is overly simplistic to a fault. Firstly, location services should ship with iOS devices turned off, not on. Let savvy users turn it on if they want but keep newbies comfortable by shipping it turned off. That's simple and should be done.

 

Yet, this is new for Apple too and we the users have to state that we want more choices on which location services we want to open up and which ones we want shut off. It's unfair for Apple to put us in a situation of take it all or lose it all. I may want Apple's "Places" based location services for photos but I may not want my every move tracked for social networking purposes so that friends could track me down. Meaning - that Apple has to create a superior interface in the iOS settings area of our devices that provides us with a list of services to turn on or off.  When we're faced with a take or leave it choice, it'll force some of us to turn it on knowing full well that we really don't want every location based service made available to us. Apple shouldn't force us into that limited situation.

 

At the end of the day we're likely to hear more from Apple and others in the industry when they go before the Senate to discuss location based services. We definitely hope to hear honest answers and not a lot of marketing slogans or excuses that we the public are just too stupid to understand. We hope that the scope of the debate also covers the topic of user profiling that is being considered for future devices.

 

Companies like Apple and Google who own Ad companies have a vested interest in tracking more information about us than they should be able to gather and we'll likely need stiffer laws to ensure that these companies will face harsh legal consequences if they cross the line.

 

But we're not there yet and not even close. So until things get ironed out, calling up the bogeyman to scare the public so as to justify class action lawsuits is pathetic while being expected. What we need is to get consumers to articulately voice their opinions loud and clear so as to assist the Senate in asking the right questions that meet our concerns. So please, get involved with commenting below and let's hear what's on your mind.

 

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