iTracking II: Apple Sued Again for Violating Computer Fraud and Abuse Act

Apple Store

Image via Wikipedia

It has happened again — another plaintiff has sued Apple along with Pandora, The Weather Channel, and several “Does”  in another class action law suit for, what I have referred to as, iTracking — you know, the “scandal” that broke not too long ago about how Apple, and others, have been allegedly collecting users private location data, etc. This I have learned from a story in Redmond Pie (tweeted to me by my friend @mrbarrycooke) that refers to another story in The Loop, both of which enticed me enough to take time away from my busy day to read a little more on this and share it with you, so here goes!

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Apple Should Win the Computer Fraud and Abuse Act Claims …

Image representing Apple as depicted in CrunchBase

Image via CrunchBase

that were filed against it for iTracking–that is, tracking and recording the details of all iPhone and 3G iPad owners’ movements without their knowledge. Here are two and a half reasons why:

Why two and a half, you may wonder? Because one of the reasons is a 50/50 toss up!

Apple has been sued for several different claims but my focus is on the Computer Fraud and Abuse Act (“CFAA”) claim. Based upon the allegations of the Complaint there are 3 issues that the plaintiffs had better be prepared to address when Apple files its Motion to Dismiss, most likely within the next couple of weeks.

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Apple iTracking Case: will Apple be WINNING on Computer Fraud and Abuse Act claim?

Image representing Apple as depicted in CrunchBase

Image via CrunchBase

From what I’ve seen thus far, it should.

But first let’s start with a little background …

Apple Was iTracking and Got Sued!

As anyone who is not living under a rock knows by now, Apple has been sued over the allegations that it has surreptitiously tracked and recorded the details of all iPhone and 3G iPad owners’ movements since approximately June 2010. These are the allegations underlying the plaintiff’s claims in Ajjampur v. Apple, Inc., (the “Apple iTracking Case”) filed in the Middle District of Florida, Tampa Division on April 22, 2011. Here is a copy of the Complaint.

The CFAA Violations Alleged

The plaintiffs seek to make this a class action lawsuit and claim it is worth in excess of  $5,000,000 for violations of, among other things, the Computer Fraud and Abuse Act (“CFAA”). Their claims are premised upon 2 violations of the CFAA:

  1. Subsection (a)(2)(C) which is the standard “obtains information from a protected computer” “fraud” section that is almost always used. (Last weeks’ blog Basic Elements of a Computer Fraud and Abuse Act – “Fraud” Claim sets out the elements of proof for this “standard” claim); and
  2. Subsection (a)(5)(A) which provides that a violation is committed by “[w]hoever … knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer.

Apple will certainly file a Motion to Dismiss the Computer Fraud and Abuse Act claim on the issues of “jurisdictional loss” and “damage” and, in all likelihood, “access” as well. We will start by looking at access, as courts usually do when analyzing Computer Fraud and Abuse Act cases.

The Access Issue

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