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.

First, they must be able to show that Apple accessed their “computers” in a manner that either was “unauthorized” or that “exceeded authorized access.” The problem is, before every iPhone and iPad user can use the device they must agree to Apple’s iPhone Software License Agreement. This agreement authorizes Apple to access the devices for the collection of “non-personal data” which raises the question, is the location of the device non-personal data? Good question–this one’s a toss up–the half!

Second, for their claim that Apple wrongfully transmitted information to the computers they must be able to show that by doing so, Apple intentionally caused damage without authorization. In addition to the authorization problem above, they have not even alleged any “damage” that fits within the specialized definition of the term in the CFAA. That makes it difficult to win on this issue. One for Apple.

Third, in order to bring any civil claim under the CFAA, which this is, the plaintiffs must be able to show that a loss was incurred. The term “loss” also has a very specialized definition under the CFAA and there are numerous court cases interpreting and applying the term. At this point, the plaintiffs have not alleged anything in the Complaint that fits within the definition of “loss” and, without showing that, the court does not even have jurisdiction to hear the CFAA claim. This too presents quite a challenge for the plaintiffs. Two for Apple.

There you have it, two and a half reasons why Apple should win in its forthcoming Motion to Dismiss the plaintiffs’ Computer Fraud and Abuse Act claim. If you are interested in a more thorough analysis of these issues please see yesterday’s “brief”: Apple iTracking Case: will Apple be WINNING on Computer Fraud and Abuse Act claim?