Judge Nixes Windows Phone 7 Location Tracking Class Action Lawsuit

A woman’s attempt to seek damages over alleged violations of the Stored Communications Act (SCA) came to an end after a judge granted Microsoft’s motion for summary judgment, ending a Windows Phone 7 location tracking class action lawsuit.

Rebecca Cousineau had alleged violations of the federal statute, with her class action attorneys arguing that Microsoft illegally accessed her location data when she used the camera app on her Windows Phone 7 device. However, U.S. District Judge John C. Coughenour identified several fatal flaws with the complaint, and in granting the motion for summary judgment, nixed certification for the class action lawsuit as well.

In analyzing the SCA, Judge Coughenour identified language and case law indicating that “the sort of trespasses to which the Stored Communications Act applies are those in which the trespasser gains access to information to which he is not entitled to see, not those in which the trespasser uses the information in an authorized way.”

He decided that because Cousineau had enabled universal location tracking services, “there was no unauthorized access” when the phone’s software “accessed that same information at the request of the camera application.” Further, prior to using that app, Cousineau had to accept a prompt noting that it could access location data.

“The Court is sympathetic to Plaintiff’s claims that Microsoft’s practices may have [been] deceptive, but sympathy does not suffice when the statute creates liability only for unauthorized access” to location tracking and other data, the judge noted. However, there was still another fatal flaw in her class action attorneys using the SCA for access to data in a Windows Phone 7 device.

Case law in the 9th U.S. Circuit Court of Appeals regarding the SCA indicates that a device such as a personal computer or smartphone “does not provide an electronic communication service simply by virtue of enabling use of electronic communication services.” Since Cousineau’s Windows Phone device did not provide location services “to other users in a server-like” fashion, the statute does not apply.

Cousineau is represented by Jay Edelson, Rafey S. Balabanian, Ari J. Scharg, Chandler R. Givens and J. Dominick Larry of Edelson LLC and Kim D. Stephens and Janissa A. Strabuk of Tousley Brain Stephens PLLC.

The Windows Phone 7 Location Tracking Class Action Lawsuit is Rebecca Cousineau v. Microsoft Corp., Case No. 11-cv-01438, U.S. District Court, Western District of Washington.