Updated 2:38 pm ET Sunday, December 4
Carrier IQ’s secret mobile phone tracking software is headed to court. Three separate class-action lawsuits have been filed against the company and some of its business partners as of Friday, including mobile giants Samsung and HTC.
Seattle-based law firm Hagens Berman on Friday announced it had filed a nationwide class action lawsuit against Carrier IQ, Samsung and HTC, on behalf of four smartphone users, accusing the companies of violating U.S. wiretapping law by having the Carrier IQ software covertly installed and running on the plaintiffs’ smartphones, among the over 140 million devices worldwide that Carrier IQ boasts on its website.
The lawsuit accuses the companies of violating U.S. wiretapping law, specifically the Federal Wiretap Act and California’s Unfair Business Practice Act, and seeks damages and a ruling to prevent such software from being installed in the future.
“We believe that CIQ was intercepting and collecting private information from smartphone users that they had no right to monitor or record,” said Steve W. Berman, the attorney representing the plaintiffs, in a statement. “Their actions, in concert with phone manufacturers and the various carriers, should raise the hackles of anyone concerned about privacy in the broadest terms.”
Although the lawsuit was filed in the Northern District of California, the firm’s statement points out that the suit can be expanded to include other companies as well.
The firm’s statement also invites other users who’ve found Carrier IQ on their phone to join the lawsuit by calling 206-623-7292.
The first was filed in the Northern District of Illinois against Carrier IQ and HTC on behalf of one Android HTC smartphone user in Illinois, Erin Janek, and “on behalf of all others similarly situated,” which includes “all U.S. residents who operate a cellular phone” from HTC that has Carrier IQ installed on it.
The complaint also claims that Carrier IQ and HTC violated the Federal Wiretap Act, specifically the provision claiming “any person who…intentionally intercepts, endeavors to intercept….any wire, oral, or electronic communications,” can be sued in civil court.
“Defendants have unlawfully intercepted private electronic communications emanating from private mobile phones, handsets and smart phones. This practice violates Federal Law,” the lawsuit states.
The other lawsuit was filed in the Eastern District of Missouri against Carrier IQ and Samsung on behalf of three Samsung smartphone users in the state — Margaret Elliott, Elizabeth Lammert and Lisa Rosenburg and “all others similarly situated.”
Attorney Steven Stolze, who is representing both sets of plaintiffs, told TPM in a phone interview that the suits were filed in that order against those defendants because those were the companies that confirmed, and that his firm could verify, allowing Carrier IQ to be installed and used to obtain user information.
“We’re still in the midst of our investigative process” against other potential offenders, Stolze told TPM.
Stolze said that his firm hadn’t ruled out filing a lawsuit against the carriers who have admitted to using Carrier IQ, including AT&T, Sprint and T-Mobile.
That said, sources close to all three cases told TPM that the reason plaintiffs didn’t target the mobile carriers who have admitted to using Carrier IQ — AT&T, Sprint and T-Mobile — is at least partially because a recent Supreme Court ruling that makes it virtually impossible for any individual in the U.S. to file a successful class action lawsuit against a wireless company.
In that Supreme Court case, AT&T Mobility LLC v. Concepcion, the Supreme Court ruled 5-4 in April that wireless customers waive their rights to a class action lawsuit against AT&T the instant they sign their contracts with the company, thanks to arbitration clause AT&T has in the contract. Other wireless carriers have similar clauses.
Even state laws permitting class action lawsuits are invalidated by the clauses, leading several experts to proclaim that the Supreme Court’s ruling marked the “death knell” of the class action lawsuit. At the time of the ruling, other legal experts pushed back, saying that such claims were an exaggeration.
However, given that in the three Carrier IQ lawsuits filed so far, firms have not sued the large carriers — even though basically everyone blames them as being behind the software’s activities, including Carrier IQ, which says it only collects the information that carriers request — it can safely be said that at the very least, the AT&T Mobility ruling has acted as a deterrent against class action lawsuits.
We’ve reached out to Samsung and HTC about the lawsuits and will update when we receive a response.
Late update: Stolze contacted TPM to clarify that although the defendants have said that the software was installed by the request of the wireless carriers, and as such, it is the carriers who bear the responsibility for its operation, the plaintiffs’ position is that this doesn’t constitute a valid defense under U.S. law.