Microsoft Wants Windows Phone 7 Class Action Lawsuit Tossed

Microsoft Corp. has petitioned a Washington state judge to dismiss a proposed class action lawsuit accusing its Windows Phone 7 of illegally tracking users’ locations without their consent, saying that the phone’s location services, data management and key details of its operating system prove that the company did not violate the law.

The newest motion reflects plaintiff Rebecca Cousineau’s decision to update a 2011 class action lawsuit after she learned in pre-trial discovery that her phone, which used the Windows Phone 7 operating system, never transmitted her location information outside her device. Cousineau dropped all the claims in the class action lawsuit and asserted a new theory: that Microsoft breached the Stored Communications Act because a bug in the Windows Phone 7 Camera application caused her phone to request location information stored in her phone’s random access memory (RAM) every time she launched the Camera.

“In other words, Ms. Cousineau’s theory no longer rests on Microsoft gaining unauthorized access to or receiving information stored on her phone. Rather, she argues Microsoft is liable [under the SCA] because one Windows Phone 7 software component (i.e., the Camera application) requested information stored elsewhere on the phone (i.e., RAM), without her permission … even though she alleged hit ‘cancel’ when asked whether she wanted to allow it to use her location,” Microsoft said in its Dec. 5 motion.

The tech giant argues that there are significant concerns regarding this interpretation of the statute. One, the company cannot access the information stored by the camera application, so there is no liability “unless the software facilitates the defendant’s access to those communications.” If this does not suffice, the defense team also noted that the plaintiff approved other applications’ access to this location data, just not the camera application in question.

Relevant case law should also lead to a dismissal, Microsoft said, as the SAC notes that violations are based on the stipulation that a defendant gains access to a “facility through which an electronic communications service is provided,” a notion disputed during the discovery process regarding the alleged smartphone tracking.

Since the data that is used to establish the location services function only accesses data that is already in place in the RAM, that is also not a viable reason to continue the class action lawsuit regarding Windows Phone 7 issues, the company argues. The data is not “in transit” but rather has been stored there by other applications.

Microsoft asked the Court to dismiss Cousineau’s SCA claim – “the only claim remaining in the case” – effectively dismissing the class action lawsuit in whole.

Rebecca 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 Microsoft 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.

UPDATE: A judge has granted Microsoft’s motion for summary judgment and denied certification for the Microsoft Windows Phone 7 Location Tracking Class Action Lawsuit.

All class action and lawsuit news updates are listed in the Lawsuit News section of Top Class Actions