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

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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!

The Lawsuit

In a Complaint filed on May 10, 2011, in the case styled Lymaris M. Riveria Diaz v. Apple, Inc., et al., Civil No. 11-1433, in the United States District Court for the District of Puerto Rico. Diaz has asserted seven causes of action against the defendants; six state law claims and one federal, it’s “lead” claim: violation of the Computer Fraud and Abuse Act (sometimes referred to as “CFAA”). This post addresses only the latter.

In review the Complaint the allegations of “loss” are essentially the same as in the first Apple iTracking case: that is, technically, none, as far as the CFAA is concerned.

75.   Defendants further violated the [CFAA] by causing the transmission of a program, information, code or command and as a result caused harm to the Class aggregating at least $5,000 in value.

Complaint p.16.

The Weak Prediction

This allegation should not usually cut it as an adequate pleading of “loss” for a CFAA claim. The pleading of a loss is essential to asserting a valid civil claim under the CFAA and several courts have made it clear that simply reciting the language of the CFAA will not suffice. See Garelli Wong & Assoc., Inc. v. Nichols, 551 F. Supp. 2d 704, 709-10 (N.D. Ill. 2008); Impreo Holdings LLC v. Thomson Reuters Corp., 2011 WL 855872, at *7 (S.D.N.Y. Mar. 8, 2011); M-1 LLC v. Stelly, 2010 WL 3257972, at *12 (S.D. Tex. Aug. 17, 2010). Others, however, have not been so stringent. See Lapp Insulators LLC v. Gemignani, 2011 WL 1198648, at *8 (W.D.N.Y. Mar. 9, 2011). In order to adequately plead a “loss”, as defined by the CFAA, there must be some sort of costs unless there has been an interruption of service. There are no allegations of an interruption of service. There are no allegations of costs. There should no longer be a CFAA claim after Apple files its Motion to Dismiss!

Notice I said usually and should. As I said in yesterday’s blog, the jurisprudence under the Computer Fraud and Abuse Act is continuously evolving and “it is not unusual for different courts, on different days, based on different facts, to rule in different ways in many of these cases.” That holds true in the case Diaz v. Apple, Inc. as well and that is why my prediction has to be so “weak” with the caveats of “usually” and “should”!

For more analysis of these issues, see the following blog posts: Apple Should Win the Computer Fraud and Abuse Act Claims … and Apple iTracking Case: will Apple be WINNING on Computer Fraud and Abuse Act claim?

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