Microsoft filed a motion in late November to dismiss a Windows Phone location lawsuit.
Microsoft has been accused of tracking Windows Phone locations without explicit end user consent over the past few months. A lawsuit was filed in a Seattle federal court in September, backed by analysis from well known security researcher Samy Kamkar. Windows Phone 7′s camera application was found to send Wi-Fi access point and cell tower information to Microsoft’s servers without explicit permission from end users.
Microsoft admitted to the “unintended behavior” in September and revealed that Windows Phone 7.5 fixes the specific camera issue. The company also discovered that the me feature of the People Hub transmits data without end user authorization. Microsoft is promising to address this particular issue in an upcoming update. The plaintiff in the lawsuit against Microsoft accused the company of attempting to cover-up its behavior. In a letter to the court in October, the plaintiff found it unfathomable that Microsoft could be susceptible to common software bugs. “The idea that, during the programming process, these software engineers simply “overlooked” the fact that their own code was designed to ignore users’ refusal to consent to be tracked is untenable,” said a letter to the Seattle federal court.
Microsoft has now filed a motion to dismiss the case entirely based on a number of factors. Rafael Rivera managed to secure the legal papers filed on November 18.Rebecca Cousineau, who initiated the lawsuit, sued for statutory damages of $1,000 for herself and each member of a class action of hundreds of thousands. The software maker lists six reasons to dismiss the case:
- First, Cousineau has not alleged Microsoft’s receipt of location data harmed her in any way. Cousineau therefore lacks Article III standing to pursue her claims in federal court.
- Second, Cousineau states no SCA claim. The SCA prohibits unauthorized access only to a “facility though which an electronic communication service is provided,” a term that does not reach Cousineau’s phone. And even if her phone were a “facility,” the Complaint fails to allege Microsoft obtained a communication while in “electronic storage,” as the SCA requires. Finally, Cousineau alleges Microsoft provides her an electronic communications service (“ECS”), i.e., location services. Under the SCA, an entity providing an ECS, such as Microsoft, does not violate the SCA if it accesses a facility associated with that service, as Cousineau alleges.
- Third, to state a WTA claim for “interception,” a plaintiff must allege the defendant intercepted a communication during transmission. Because Cousineau alleges Microsoft accessed data from a stored file on her Windows Phone 7, Microsoft “intercepted” nothing. Further, the WTA defines “intercept” as the “acquisition of the contents of any wire, electronic or oral communication,” and the location data allegedly sent to Microsoft comprise records or other data, not “contents.” Finally, even if Cousineau properly alleged interception, the WTA does not prohibit a person from intercepting a communication to which that person is a party—and Cousineau alleges Microsoft was the only intended recipient of her purported communication.
- Fourth, Cousineau’s allegations negate her claim under the WPA because the transmission of location data is not a “communication” and, in any event, did not occur between “individuals.” Nor does Cousineau allege Microsoft intercepted a “conversation.” Finally, Cousineau alleges no injury to her business, person, or reputation resulting from any interception of a “communication” or “conversation,” as the WPA requires for her to state a claim.
- Fifth, Cousineau fails to state a claim under the CPA because she alleges no facts even suggesting injury to her business or property or, to the extent she alleges injury, a causal link between an injury and Microsoft’s receipt of location data for cell towers and WiFi access points.
- Sixth, Cousineau conferred no unjust benefit on Microsoft. Cousineau’s phone runs Windows Phone 7 software that, as far as the Complaint shows, flawlessly performs smart phone functions. No plausible unjust enrichment claim arises from the fact that the Camera application, until September 2011, unexpectedly transmitted location data if the user enabled location services but clicked “Cancel” when the Camera application asked whether to “use your location.