Will Consumers' Loss Against Apple Affect Other Privacy Cases?

by , Dec 5, 2013, 6:32 PM
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Apple recently scored a huge victory in court when a federal judge dismissed a privacy lawsuit accusing the company of transmitting too much information to app developers.

The consumers argued that Apple violated consumer protection laws by failing to live up to its privacy policy, which had broad language about protecting users. But, in a surprising ruling, U.S. District Court Judge Lucy Koh said the consumers couldn't proceed without proof that they had read Apple's privacy policies.

The dismissal in itself isn't a huge shock, given that privacy lawsuits have a mixed record in court. Just this week, a different federal judge dismissed a case against Google stemming from the company's March 2012 overhaul of its privacy policies. At the same time, many other judges -- including Koh herself -- have allowed consumers to proceed with privacy cases against Web companies.

But Koh's reasons for dismissing the case -- that consumers didn't show they read Apple's privacy policy -- seemed to come out of nowhere. In other contexts, the legal system assumes that both parties to an agreement have read it.

Also, as Internet expert Venkat Balasubramani points out, the Federal Trade Commission often says in its enforcement actions that companies that fail to live up to their privacy policies deceive consumers. In fact, just today, the FTC charged an app developer with deceiving users by sharing information more broadly than the privacy policy allowed.  While the FTC can still bring those cases, Koh's ruling seems to call into question whether consumers can be deceived by privacy policies they never read.

Either way, the FTC probably will continue to hold companies to their privacy policies. But Koh's ruling could signal trouble for consumers who want to bring private lawsuits. Already, Google is indicating it thinks the ruling will help it defeat a privacy lawsuit by a group of Android users. This week, the company submitted a copy of Koh's decision to U.S. District Court Judge Jeffrey White in San Francisco. White currently is considering whether to allow a group of consumers to proceed with claims that Google wrongly transmits people's geolocation data and other personal information to app developers.

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