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. Â 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. Â The papers, dug up byÂ Rafael RiveraÂ 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 Microsoftâ€™s receipt of location data harmed her in anyÂ 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 aÂ â€œfacility though which an electronic communication service is provided,â€ a term that does notÂ reach Cousineauâ€™s phone. And even if her phone were a â€œfacility,â€ the Complaint fails to allegeÂ Microsoft obtained a communication while in â€œelectronic storage,â€ as the SCA requires. Finally,Â Cousineau alleges Microsoft provides her an electronic communications service (â€œECSâ€), i.e.,Â location services. Under the SCA, an entity providing an ECS, such as Microsoft, does not violateÂ the SCA if it accesses a facility associated with that service, as Cousineau alleges.
- Third, to state a WTA claim for â€œinterception,â€ a plaintiff must allege the defendantÂ intercepted a communication during transmission. Because Cousineau alleges Microsoft accessedÂ data from a stored file on her Windows Phone 7, Microsoft â€œinterceptedâ€ nothing. Further, theÂ WTA defines â€œinterceptâ€ as the â€œacquisition of the contents of any wire, electronic or oralÂ communication,â€ and the location data allegedly sent to Microsoft comprise records or other data,Â not â€œcontents.â€ Finally, even if Cousineau properly alleged interception, the WTA does notÂ prohibit a person from intercepting a communication to which that person is a partyâ€”andÂ Cousineau alleges Microsoft was the only intended recipient of her purported communication.
- Fourth, Cousineauâ€™s allegations negate her claim under the WPA because the transmissionÂ of location data is not a â€œcommunicationâ€ and, in any event, did not occur between â€œindividuals.â€Â Nor does Cousineau allege Microsoft intercepted a â€œconversation.â€ Finally, Cousineau alleges noÂ injury to her business, person, or reputation resulting from any interception of a â€œcommunicationâ€Â or â€œconversation,â€ 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 evenÂ suggesting injury to her business or property or, to the extent she alleges injury, a causal linkÂ between an injury and Microsoftâ€™s receipt of location data for cell towers and WiFi access points.
- Sixth, Cousineau conferred no unjust benefit on Microsoft. Cousineauâ€™s phone runsÂ Windows Phone 7 software that, as far as the Complaint shows, flawlessly performs smart phoneÂ functions. No plausible unjust enrichment claim arises from the fact that the Camera application,Â until September 2011, unexpectedly transmitted location data if the user enabled location servicesÂ but clicked â€œCancelâ€ when the Camera application asked whether to â€œuse your location.