• by Wendy Davis  @wendyndavis, September 1, 2011

Microsoft has been sued for allegedly collecting information about the location of Windows Phone 7 users who activate their camera phones, even when the users have said they don't want to be tracked. 

"By designing the Windows Phone camera application to thwart users' attempts to prohibit the collection of their geo-locations, Microsoft blatantly disregards its users' privacy rights, and willfully violates numerous state and federal laws," Rebecca Cousineau alleges in a complaint filed Wednesday in U.S. District Court in Seattle. Cousineau is seeking class-action status.

Cousineau alleges that she retained programmer Samy Kamkar to test her phone. Kamkar said in a report submitted to the court that the phone "intermittently" sends location information to Microsoft, even after people check a box marked "cancel" in response to a question about whether they wish to share location information. (The only two choices are "allow" or "cancel.")

Kamkar made headlines last year by creating the hard-to-delete "evercookie" in order to demonstrate how easily companies can track users, even when they attempt to opt out.

Cousineau says in her lawsuit that Microsoft violated the federal wiretap law, as well as a Washington consumer protection law. Microsoft declined to comment for this article.

Similar actions are pending against Google, which allegedly tracked Android users' locations, Apple, which is accused of tracking iPhone and iPad users. Cousineau's lawsuit, however, appears narrower than the others; it only alleges that users who activate camera apps are tracked.

Even if the allegations are true, legal experts say it's not clear that Microsoft violated the federal wiretap law -- a 1986 statute that deals with intercepting telephone conversations.

"Applying this law to the way people move data over the Internet doesn't make sense," says Eric Goldman, director of the High Tech Law Institute at Santa Clara University.

Currently, judges are struggling to figure out how to interpret the 1986 wiretap law in other privacy cases. For instance, U.S. District Court Judge James Ware in the Northern District of California recently ruled that Google might have violated the wiretap law when its Street View cars intercepted transmissions from unsecured WiFi networks.

Google had unsuccessfully argued that the statute doesn't apply to transmissions that are not password-protected. But Ware also granted Google's application to file an immediate appeal to the 9th Circuit Court of Appeals.

Even if that court rules on Google's argument, it likely will take at least several months, if not a year or longer, before a decision is issued.