Developers Say Address-Book Uploads Didn't Hurt Consumers

A group of app developers are asking a federal judge to throw out a lawsuit accusing them of violating consumers' privacy by uploading their address books.

The developers -- including Path, Instagram and Yelp -- argue that the consumers lack “standing” to proceed with their case because they weren't harmed by the alleged uploads. “No personal information has been misused or sold, no property has been damaged, no money has been lost,” the app developers argue in their most recent court papers, filed late last week.

The dispute dates to March of 2012, when Texas resident Marc Opperman and 12 other smartphone users brought a potential class-action lawsuit against a host of tech companies that allegedly uploaded mobile address books from iPhones. The suit stems from a series of reports in early 2012, detailing gaffes by app developers. The first report came from developer Arun Thampi, who blogged that the mobile social network Path collected users' contacts without informing them.

Path CEO Dave Morin apologized in a blog post and said Path had deleted the data. Soon afterward, reports emerged that a host of mobile companies, including Hipster and Twitter, were downloading and storing users' address books. Path also was targeted by the Federal Trade Commission, which accused the company of deceiving users by uploading their address books. Earlier this year, Path settled the charges by agreeing to create a comprehensive privacy policy.

The consumers subsequently amended their complaint on four occasions, most recently last month. That latest version of the lawsuit accuses Apple and a group of app developers of violating the federal wiretap law, as well as state laws in California and Texas.

The developers behind several of those apps -- Foodspotting, Foursquare, Gowalla, Instagram, Path, Rovio (Angry Birds), Twitter, Yelp and ZeptoLab (Cut the Rope) argue in a joint motion that the consumers shouldn't be able to proceed at all because they haven't shown any economic losses. (Apple filed separate papers in the case, arguing that it can't be held liable for the actions of independent app developers.)

The app developers specifically urge U.S. District Court Judge Jon Tigar in San Francisco to reject the theory that consumers were harmed by overpaying for services that promised greater privacy than was delivered. “No plaintiff alleges to have paid any sum of money to download any defendant’s app -- most of which are offered to users for free. As such, plaintiffs do not and cannot claim to have been injured by overpaying for any app.”

The developers also argue that any address-book uploads didn't deprive the consumers of property, on the grounds that the information in an address book doesn't have any intrinsic value. “Plaintiffs have not identified any use of their address books by any defendant or third party that caused plaintiffs any harm or that devalued plaintiffs’ address book information,” they argue.

They are asking that the lawsuit be dismissed with prejudice, which would prevent the consumers from revising their allegations and filing a new complaint.

It's not clear how the judge will view the app developers' argument, given that recent rulings in privacy cases have gone in different directions, says Internet legal expert Venkat Balasubramani. “It's tough to assess a motion like this,” he says in an email to Online Media Daily. “Although privacy plaintiffs have not generally fared well, the rulings have been somewhat erratic.”

A federal judge in Delaware recently dismissed privacy litigation against Google, Vibrant Media and WPP's Media Innovation Group, which were accused of circumventing Safari users' settings in order to set tracking cookies. The judge in that case said that the consumers couldn't show they had been harmed by the companies.

But a federal judge in California rejected Google's attempt to dismiss a privacy lawsuit brought by a Web user who said the company disclosed her search queries -- including ones with her name -- to publishers. Google recently agreed to settle that case by donating around $8.5 million to schools and nonprofits.


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