Microsoft Targeted in Class Action Mobile Tracking Suit
Microsoft was dragged into the mobile privacy maelstrom this week when a Washington woman sued the company for alleged geolocation tracking on its Windows 7 phones. Rebecca Cousineau filed a class action lawsuit Wednesday with the U.S. District Court in Seattle that claims the company “intentionally” and “deceptively” tracks its users’ movements even if they affirmatively deny their consent to do so. Microsoft’s conduct violates the Stored Communications Act (SCA), the Electronic Communications Privacy Act (ECPA), and the Washington State Consumer Protection Act, the suit said.
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Microsoft designed its camera application to transmit its users’ geolocation information regularly to Microsoft’s servers “even when the user expressly denies Microsoft access to such information,” the suit alleged. When users first operate a Windows 7 phone they're prompted to either “allow” or “cancel” geolocation tracking through the phone’s camera application. Even after clicking “cancel,” Microsoft “brazenly continues to collect users’ location information,” the suit alleged. “Thus, Microsoft surreptitiously forces even unwilling users into its non-stop geo-tracking program in the interest of developing its digital marketing grid,” the filing said.
The plaintiff is seeking injunctive relief to prohibit Microsoft from tracking its users and financial compensation of $1,000 per violation of the SCA and ECPA. “We feel that we have smoking gun evidence here that Microsoft has been tracking users without their knowledge and consent. This is a blockbuster case,” said Jay Edelson, an attorney with Edelson McGuire, which is representing the plaintiff along with the law firm of Tousley Brain Stephens. “Of course they will claim that it is an error in the code,” Edelson told us Thursday. “But our experts told us there is no plausible way the code could have been written like this unintentionally.” Microsoft declined to comment.
Such tracking practices run contrary to Microsoft’s privacy policies and contradict its official statements to Congressional leaders, the suit claims. The company’s website says Microsoft “will only collect location information when you allow a particular application to request location information and that particular application requests location information” (http://xrl.us/bmb7mx). Microsoft’s mobile communications business president, Andy Lees, sent a letter to eight members of Congress in May which said it does collect limited location information about its users, but “collection is always with the express consent of the user and the goal of our collection is never to track where a specific device has been or is going.”
But Microsoft’s representations to Congress are “false,” the suit said. The Windows phone camera application is designed to “thwart users’ attempts to prohibit the collection of their geolocations, blatantly disregards its users’ privacy rights, and willfully violates numerous state and federal laws,” it said.
Lawmakers began their inquiry into mobile privacy in April after two researchers discovered that devices using Apple’s iOS 4 software update were “intentionally” recording and storing each user’s latitude and longitude coordinates along with a time stamp (CD April 22 p6). Apple responded that the tracking was due to a software glitch that has since been repaired (CD April 28 p6), but the company continues to face an onslaught of domestic and international lawsuits. Recently a South Korean court awarded one plaintiff $946 after it determined that Apple collected unencrypted location data from his iPhone without prior consent (CD July 18 p15). Google and Research In Motion have also faced scrutiny from lawmakers, international regulatory agencies and consumers over geolocation tracking on Android and Blackberry devices.
Edelson dismissed accusations that the suit is merely a profiteering expedition. “There are other people who say ‘you are just tracking the news and filling a suit.’ This is totally different. Microsoft knew what it was doing, it was hiding from the public and it was hiding from Congress,” Edelson said. “Microsoft is not being honest. We hope this will spark an important conversation about what happens when these companies aren’t honest with Congress and the public about what they are doing.”