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Apple & App Developers Say Lawsuit Can’t Stand

SAN FRANCISCO (CN) - In a rare display of cooperation, app developers and tech giants asked a federal judge to dismiss a flurry of class actions that accuse the firms of uploading users' address books and invading their privacy.

The dispute began in March 2012 as a federal class action between several iPhone users and Path Inc., a social-networking app for mobile phones. It involved claims that Path gleaned sensitive data about the location and contact information of its users, minor children included, and stored such information so insecurely that it could be accessed by "even an unsophisticated hacker."

A federal judge gutted large portions of that action last year for lack of evidence that Path intercepted users' communications, a requisite for the Federal Wiretap Act. After the U.S. government found that Path had violated Federal Trade Commission rules by mining and storing data from minors, however, the parties settled with promises from Path to delete collected data and beef up its privacy policy.

But the case fired up again after reports surfaced that other app developers - including big names like Twitter, Yelp, Instagram and "Angry Birds" maker Rovio - deploy a "friend finder" function to rifle through users' iPhones and iPads, looking to make connections.

The disgruntled users joined forces to file a massive, consolidated complaint in Texas. A federal judge there dismissed the first amended complaint for violating court rules on length - 343 pages for 13 causes of action - and transferred the second amended complaint to U.S. District Judge Jon Tigar in San Francisco.

Both Apple and the app developers filed separate but similar motions to dismiss on Oct. 18.

The app developers claim that, despite the length of the current complaint - 166 pages and 26 causes of action, including the six previously dismissed in the original litigation - the users fail to show any sort of injury from the friend finder function.

"Plaintiffs' claims boil down to two allegations: first, that apps to differing degrees either failed to ask permission or to explain to their users adequately that the process of linking them to their friends requires access to the list of those friends; and second, that when transmitting the necessary list of addresses to their servers, some of the apps failed to encrypt that data, increasing the risk that a third party might intercept the information in transit," the 68-page motion filed jointly by the app developers states. "Plaintiffs heap 18 separate causes of action on those two allegations, ranging from criminal wiretapping to trespass, conversion to negligence, and even RICO. None of those scattershot claims sticks. No plaintiff or putative class member has been injured. Plaintiffs' theories of injury - that the apps' activities impaired their iDevices, diminished the 'economic value' of their address books, or exposed personal information to unspecified third parties - are theories that courts in this and other districts have repeatedly rejected."

Since most of the apps in question are free, the users will have a hard time showing injury, the app developers said. They also noted that the alleged actions save users both time and money by finding their friends and making the connections for them.

"At most, plaintiffs allege defendants copied electronic address book contacts that were stored in memory on plaintiffs' mobile devices," the motion states. "Because plaintiffs do not allege defendants acquired plaintiffs' contacts files while plaintiffs were transmitting those files to a third party, plaintiffs fail to allege an 'interception.' This is the same conclusion Judge Gonzalez-Rogers reached nearly a year ago when dismissing nearly identical allegations."

The developers also emphasized that the "mere use of the words 'intercepted' and 'transmission' does not magically transform the copying of data stored on a mobile device into an 'interception' of a 'communication.'"

Ultimately the class's allegation is "confused," according to the motion.

"Taking stored information and sending it somewhere is simply not an 'interception' as courts consistently interpret that term," it continues.

None of the users claim that the app developers sold the address books to third parties or did anything with the information other than connect them to other users, the companies said. They asked Tigar to dismiss the users' complaint with prejudice, which would bar them from taking another crack at making their case.

"As this is now the plaintiffs' fourth attempt at these claims, further amendment would be futile," the app developers said.

In its separate filing, Apple said users' claims against it fail because Apple isn't responsible for the content of third-party apps.

"Even if users could make out a separate claim for aiding and abetting, 'California courts have long held that liability for aiding and abetting depends on proof the defendant had actual knowledge of the specific primary wrong the defendant substantially assisted,'" Apple said, citing Casey v. U.S. Bank. "Plaintiffs do not even allege that Apple had actual knowledge of any alleged wrongdoing by the app defendants. Indeed, plaintiffs' allegations admit that when Apple learned of the alleged app conduct, it required the app defendants to update their apps within days."

A hearing on the motion to dismiss is set for Jan. 22, 2014.

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