• by Wendy Davis  @wendyndavis, September 10, 2014

Software company Carrier IQ and a group of mobile phone manufacturers are asking a judge to dismiss a long-running lawsuit alleging that the companies violated a host of privacy laws, including the federal law regulating wiretaps.

The litigation stems from allegations that Carrier IQ's software -- which was installed on millions of mobile devices -- could log users' keystrokes. The capability came to light in November 2011, when a researcher posted a video clip that appears to show the company logging keystrokes.

Carrier IQ acknowledged in a written report that its software sometimes logs the contents of messages, but said the data isn't readable. The company also said that its software was intended to help mobile carriers to discover the source of network problems, like dropped calls.

News about the software sparked litigation against Carrier IQ and six device manufacturers, including HTC, Samsung and LG Electronics. Those companies recently filed papers asking U.S. District Court Judge Edward Chen in the Northern District of California to throw out the case.

Among other arguments, the companies say that the consumers haven't alleged that their communications were intercepted while in transit -- as opposed to in storage. Carrier IQ and the others argue that the wiretap law only applies when companies intercept communications as they are being transmitted.

“Plaintiffs allege only that the communications were accessed before they were transmitted from or after they were received onto the same device on which the Carrier IQ software was stored,” Carrier IQ and the manufacturers say in papers filed last week. “Nowhere do plaintiffs allege ... that Carrier IQ’s software intercepted electronic communications over the air -- that is, between the cell tower and mobile device.”

Carrier IQ and the manufacturers also argue that the alleged interceptions weren't of “content,” but of “non-content records. User names and passwords that may be embedded in URLs are non-content records that are not subject to the Wiretap Act,” the companies argue.

The consumers are urging Chen to allow the lawsuit to continue. “This case is about the violation of Americans’ rights to be free from unlawful interference and prying in the use of their smartphones and tablets,” the consumers said in court papers filed last month. “It is about the defendants’ interception and manipulation of consumers’ personal communications and data ... and the sale by device manufacturers of expensive phones rendered unmerchantable due to software that invaded consumers’ privacy.”

Despite the recent flurry of legal papers, the matter could still be resolved out of court. Carrier IQ, the carriers and consumers are expected to meet with a mediator in November, according to court papers.

Chen is slated to hold a conference in the case on Dec. 11.