“There is nothing in this record to reasonably support a conclusion of actual knowledge and there is explicit, specific testimony to the contrary,” Apple attorney Robert Hawk told U.S. District Judge Jon Tigar at a hearing on Apple’s motion for summary judgment.
The consolidated class action led by Marc Opperman claims Apple distributed “invasive versions” of the Path app, which downloaded details from users’ contact lists without their knowledge or consent.
Tigar in July certified a class of 480,000 Apple device users whose contact data was downloaded by Path between Nov. 9, 2011 and Feb. 7, 2012.
Hawk said that simply making the app available and promoting it in its app store, as Apple does for “tens of thousands” of other apps, does not rise to the level of substantial assistance the class claims apple gave to Path.
He said it was disingenuous for the class to claim that Apple aided and abetted the very conduct it contractually prohibited in its program licensing agreement with Path — an agreement the class cited in its case against the app developer.
“I think it’s illogical and unfair to let the plaintiffs come in and on one side try to say that these contractual prohibitions were explicit and that they bound the app developers and they were consciously violating them, while saying on the other side of their mouth that the contracts were only purported requirements or that they were boilerplate,” Hawk said.
“How can you be giving substantial assistance to something you were binding app developers not to do? There’s just no explanation for that.”
Class attorney Frank Busch said the extent of Apple’s knowledge is not yet known, but that Apple did know something was wrong when it tested and reviewed the Path app.
“This case is about what Apple knew and what Apple did, and we don’t know yet exactly that, but we have plenty of evidence for this motion,” Busch said.
Busch said Apple expressed outrage at the data theft only after the scandal broke in Feb. 7, 2012, leading to a congressional investigation of Apple’s privacy practices.
“Their brand is built on the promise that if you download an app from the app store, that app is safe,” Busch told Tigar. “They know the apps have the ability to do it, that the apps are doing it, and they stick their heads in the sand.”Tigar replied: “It isn’t hyperbole on Mr. Hawk’s part to say there were tens of thousands of apps. Many, many apps have been accepted and some have been singled out for promotion. If that’s all there is, it would be a stretch for me to find that enough. Wouldn’t that make Apple liable for every tort committed by every app in its store?”
Busch responded: “If you know if what the app is going to be used for is wrong, that would be substantial assistance. No user would have a single contact harvested from Path if not for Apple’s assistance.”
Tigar took the arguments under submission
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