Microsoft files to dismiss Locationgate law suit, claims no harm and no foul

A few months ago it was revealed that the Windows Phone Camera app transmits location information to Microsoft even when the user denied the request.  The US justice system being what it is, a law suit soon followed, claiming $1000 for the plaintiff and each member of the class (that w0uld be us if we joined the suit).

Now Microsoft has filed papers with the court on the 18th November, asking for the case to be dismissed.  The papers, dug up by Rafael Rivera makes the case that Microsoft did not contravene the law as set out regarding wire tapping, that Microsoft was always the intended recipient of the communication, so Microsoft did not intercept communication with others, that the data sent was not communication in any case, that the sender came to no harm from the information being inadvertently sent, and that, according to her her phone worked otherwise perfectly well.

In more detail:

  • 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.
Given the environment currently with regard to tracking it will be interesting to see if the court accepts the argument.
What do our readers think? Does Microsoft have a case? Let us know below.

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