May 2017

Transit App Allegedly Secretly Tracked Users Without Notice Or Consent

Moreno v. BART
Class complaint – Bay Area Rapid Transit (BART) allegedly collected personal information, device identifiers, and location data through its Watch app without user knowledge or consent. The purpose of the app was to allow BART riders to quickly and discreetly alert security personnel about safety or security concerns. However, plaintiff alleged, the app secretly collected unique cellular identifiers, periodically monitored user locations, and tracked identities of anonymous reporters. The app allegedly did not specifically request permission for such collection and use, and although mentioned (with dubious specificity) in the terms and privacy policy, those agreements were not seen by plaintiff, as the links were obscured by the keyboard on data entry screens.


Claims have been filed under California’s Cellular Communications Interception Act and Consumers Legal Remedies Act, as well as claims of Intrusion Upon Seclusion and violation of privacy rights under the California Constitution.
[N.D. CA; 4:17-cv-02911]
jbho: another complaint that uses detailed technical information to support its claims. If you are responsible for vetting apps, you might want to learn how to use these tools, or hire someone who already knows them.

Also of interest is that contract formation may be at risk because of app design. Remember that Uber may not be able to enforce arbitration provisions in its user agreement due to similar alleged design flaws. Users can’t consent to terms they don’t see.

Note also the complaint focuses on collection of IMEIs, which although not forbidden, is discouraged by Google. Another reason to question what your developers are collecting and whether you really need it.

BTW: the Watch App privacy policy ( was updated on 26 May 2017. The complaint was filed on 22 May 2017. Curious timing… 


April 2017

Email Scanning Class Action Against Email Blocking Service

Cooper v. Slice (UnrollMe)
Class Complaint – UnrollMe allegedly used its spam blocking service to intercept, read, and store contents of consumer email communications, all without consumer knowledge or consent.
[N.D. CA; 3:17-cv-02340]
jbho: The impetus for this appears to be the recent NYT article accusing Uber of buying Lyft-sent emails from UnrollMe.

It is an interesting case. Screenshots in the complaint do seem to indicate UnrollMe will read emails, and users must “Allow” that at sign up.
Nonetheless, based on the complaint, I’d say you might want to make sure you privacy policy is consistent with your marketing materials. And you should make sure PR people are well prepared with responses when things go south (the UnrollMe CEO is quoted in the complaint as saying the privacy policy & terms “weren’t explicit enough.”)


Headphone App Allegedly Listens To Listeners

Zak v. Bose
Class complaint – Bose allegedly captured data on audio programs listened to through its mobile app, and allegedly shared the captured data, along with other personal identifiers, with third parties. Data was allegedly ‘intercepted’ while transmitted to the headphones, and included songs, radio broadcasts, podcasts, etc. that potentially revealed sensitive information about politics, religious views, personalities, etc. Plaintiff alleged the data was captured and shared without consumer knowledge or consent.
[N.D. Ill; 1:17-cv-02928]
jbho: I’m a little surprised plaintiff didn’t try to pursue VPPA claims, since it sounds like if someone was watching a movie, that would have been slurped up and shared as well? Allegedly, of course. Perhaps too difficult to show commonality (a movie watcher subclass?).

The interception argument may be a tough one if the communication endpoints are the Bose app & Bose headphones. I suppose a determination will need to be made on the true origination point of the transmission.

Nonetheless, a reminder to keep an eye on your mobile developers, and make sure “privacy by design” is being implemented. That means:
• Knowing what your apps need
• Knowing what your apps are actually doing (including any imported code from third party SDKs)
• Turning off the functions you don’t need
• Getting consent for data/functions you do need
• Making sure your privacy policies are updated, and are clearly and conspicuously posted – in the app, and on the AppStore/Play


March 2017

Smart Massage Device Maker Settles for $3.75 Million

N.P. v. Standard Innovation (We-Vibe)

Preliminary $3.75 settlement – We-Vibe – through an app linked to its personal massage device – allegedly recorded highly consumers’ product use without knowledge or consent. See more.

The preliminary settlement amount is CAD $5 Million (~USD $3,750,000), distributed across an App Class (downloaded the We-Connect app and used it to control a We-Vibe Brand product), and a Purchaser Class (purchased a Bluetooth enabled We-Vibe brand product).

Highlights include (in USD $):
• $3,750,000 non- reversionary settlement fund
• $500 for each ‘App Class’ class member (expected)
• $40 for each ‘Purchaser Class’ class member (expected)
• $5,000 for each class representative (requested)
• $1,250,000 for class counsel (1/3 of settlement fund, requested)
Standard Innovations also agreed to stop collecting personal information, destroy all previously collected personal information, update its privacy policy to accurately reflect its practices, and offer an opt-out for third party data sharing.
[N.D. Ill; 1:16-cv-08655]
jbho: same as before: make sure you know what your apps are doing, disclose that behavior, and get appropriate consent.


NYAG Fines Three App Makers $30,000 For Unsubstantiated Performance Claims & Lack Of Privacy Disclosures

AG Schneiderman announced a settlement with Health app makers Cardiio, Runtastic, & Matis for alleged misleading performance claims, and sharing information without appropriate user knowledge or consent.
Cardiio and Runtastic allegedly claimed their apps could measure heart rate, but were unable to provide evidence supporting those claims. Cardiio also ‘misleadingly implied’ it was endorsed by MIT
Matis claimed its app could turn any smartphone into a fetal heart monitor, but failed to provide evidence it had been tested against devices scientifically proven to amplify the sound of a fetal heartbeat

The AG further alleged the apps collected sensitive health information, Device IDs, or GPS information without adequate disclosure to, or consent of, the user. Nor did the policies disclose the information collected was not protected under HIPAA. The privacy polices also permitted each to essentially share the sensitive data with anyone the app maker chose.

Under the settlement, each app maker must modify its claims, and only make claims that have been validated by qualified researchers. Records of such testing must be maintained and made available to the AG on demand. Additionally, each must make clear their apps are not medical devices and are not approved by the FDA.

Each must also pay the following monetary penalties:
• Cardiio – $5,000
• Runtastic – $5,000
• Matis – $20,000

With respect to privacy, each must update their privacy policies to disclose what data is collected, how it is shared, with whom, and how it is protected. Each must also get express consent before collecting or sharing data. Where aggregate data will be shared, each must get contractual guarantees data recipients will not re-identify the data.

Each must also establish security policies to protect data collected through their apps, and review the policies bi-annually.
jbho: this one is likely more about the alleged deceptive advertising than data collection, particularly since the AG stated the apps could be harmful if consumers were relying on inaccurate or misleading results for health purposes. But still interesting that the AG is making them get active consent to the privacy policy.

Also worth noting, is that the AG stated a device ID is personal.

“Runtastic collected and provided to third parties the unique device identifier of users of Heart Rate Monitor, which is personally identifiable information”

Another Class Action Over Eavesdropping Smart TVs

Siegel v. Samsung
Class complaint – Samsung allegedly recorded private communications with its Smart TVs (including child voices) and shared the communications data with third parties – all allegedly without consumer knowledge or consent. The data was allegedly collected through built-in ‘always on’ recording devices that were not disclosed to the user.

Although the complaint stated defendant’s activities violated multiple federal laws (CCPA, COPPA, ECPA), the compalint focused on the New Jersey Consumer Fraud Act (CFA) for its cause of action.
[D. N.J.; 2:17-cv-01687]
jbho: variation on a theme: know what your devices are doing and get consent for that processing.

FYI, EPIC issued a formal complaint the FTC on the same matter back in 2015


February 2017

Runing App Allegedly Snooped At Rest

Vasil v. Kiip
Class complaint – mobile marketer Kiip, through its mobile SDK, allegedly collected and used data from consumer mobile phones without user knowledge or consent. The Kiip SDK allegedly collected consumers personal information, geolocation data, and device identifiers, even when the underlying app was not in use or a consumer was not using the phone. Plaintiff also claimed Kiip failed to inform its partners using Kiip technology of the alleged surreptitious data collection.
[N.D. Ill; 1:16-cv-09937]
jbho: Two reasons to know what data your apps are collecting:
1) avoid public embarrassment, regulatory action, or litigation
2) keep your insurance coverage

In an interesting development, Kiip’s insurer, Admiral, has filed a motion for judgement that it has no duty to defend or indemnify Kiip since the policy specifically excludes:
• intentional acts, including by error or omission
• unauthorized data collection

BTW: the complaint specifically mentioned the Runkeeper app as one that allegedly collected data through the Kiip SDK. Originally caught by a Norwegian consumer protection group, Runkeeper issued an apology stating the ‘bug’ had been fixed (


NY AG Settles With App Makers

AB Mobile Apps and Bizness Apps allegedly collected personal information through their apps, but failed disclose polices for what data was collected and how it was used. As part of the settlement,each has either added privacy policies to their apps, or pulled them from the App Store/Google Play.
jbho: no discussion of monetary penalties, so this may just be a ‘name and shame’ reminder to clearly and conspicuously disclose data collection, use, sharing, and retention practices.

Also, it’s probably a good idea to keep an inventory of your apps, and if they are no longer being used or supported, you should pull them from the App Store/Google Play.


November 2016

Alleged Built-In Snooping Class Action

Bonds v. Blu Products
Class Complaint – Blu allegedly pre-installed Adups firmware on its phones without consumer knowledge or consent. The Adups software allegedly intercepted and recorded sensitive personal information including telephone numbers, contact lists, call history, full body of text messages, unique device identifiers and “fine-grained device location information,” and transmitted the information to servers in China. In addition to the privacy violations, plaintiffs alleged diminished value of phones as the surreptitious collection and transmission of data increased costs to keep batteries charged as well as decreased the total lifespan of the phone. Plaintiff could neither reasonably detect nor delete/disable the Adups firmware.

Plaintiff stated he would not have purchased the phone – which he used to send/receive calls and texts that included sensitive personal and work-related information – had he been aware that information was being secretly intercepted and shared. Claims have been filed under the ECPA, Federal Wiretap Act, Magnuson-Moss Warranty Act, as well as Intrusion upon Seclusion and Trespass to Chattels claims.

UPDATED:  10Apr2017 – the case has been consolidated with Aguilar v. Blu Products [S.D. FL; 1:16-cv-25131] (Doc#29).

[S.D. FL; 1:16-cv-24892]
jbho: once again, if you are asking consumers to install software on their devices, you better know what that software does. And get consent for that processing.

Note that the allegedly surreptitious activities were identified in a security bulletin published by Kryptowire ( You may remember the name Kryptowire as the firm hired by the BBB to help the inspect websites & apps for compliance with DAA principles: I’m seeing more and more complaints citing computer code and using ‘forensic accounting’ to identify statutory violations, so technical ignorance may no longer be an excuse for not knowing what is going on in your apps.

And finally, plaintiff here is represented by Girard Gibbs LLP. The Rosen Law Firm published its opw alert on this matter (, indicating more lawsuits are likely to follow.

PS: Blu Products provides low cost phones, where costs are subsidized by advertising revenue (users must consent to see ads on their phones). So this whole thing may go away on that basis alone. Stay Tuned…


October 2016

Fan Says Colts Eavesdropped Through Mobile App (UPDATED)  

Rackemann v. Lisnr
Class complaint – Defendants allegedly intercepted consumers’ oral communications without their knowledge or consent. Interception was allegedly performed by an Indianapolis Colts mobile app, developed by mobile app company Yinzcam, using Lisnr’s inaudible Smart Tones audio beacon technology. The audio beacon technology was allegedly not disclosed in the App’s Terms of Service or Privacy Policy, and no part of the App’s user interface displays a warning that the microphone was turned on.

UPDATE: 22Feb2017 – Motion to dismiss denied, case transferred to Indiana
The court ruled that in admitting the app filtered recorded audio to identify ‘inaudible’ beacon tones, the app must by design first capture and record all audio, which made plaintiff’s claims plausible at the motion to dismiss phase. The court did agree with Defendants that the case should be heard where the Colts and its fans, including plaintiff, were located.
(Doc 47 – Order on Motion to Transfer Case)

[W.D. PA; 2:16-cv-01573]
jbho: a recurring theme – if you are asking consumers to install software on their devices, you better know what that software does. And get consent for that processing.

Not that the complaint provides a ‘forensic account’ of the app’s actual computer code to support the claims. There seems to be a trend of technical information being included in complaints. As plaintiff’s bar becomes more tech savvy, you should make sure your products are appropriately vetted – preferably in lab environment.

Also interesting, plaintiff uses a company press release as further evidence of defendant’s intention to eavesdrop:

BTW: a similar complaint to the one recently filed in California against the Golden State Warriors (see below). A trend developing?


September 2016

App Maker Gets Up-Close and Personal

N.P. v. Standard Innovation (We-Vibe)
Class Complaint – We-Vibe – through an app linked to its personal massage device – allegedly recorded highly intimate and sensitive data regarding consumers’ product use without knowledge or consent. We-Vibe allegedly collected data despite in-app promises user connections were secure. Plaintiff claims she would not have purchased We-Vibe if she had known it was designed to secretly monitor, intercept, and transmit consumer usage information. Plaintiff has filed claims under:
(1) Federal Wiretap Act
(2) Illinois Eavesdropping Statute
(3) Intrusion upon Seclusion
(4) Unjust Enrichment
(5) Illinois Consumer Fraud and Deceptive Business Practice Act

UPDATE: 29Nov2016: Parties executed a Memorandum of Understanding (“MOU”) through mediation, and are in the process of drafting a Class Action Settlement Agreement. A 60 day stay of the litigation was granted (Doc#19).

[N.D. Ill; 1:16-cv-08655]
jbho: before you roll out a mobile app, make sure you know what it’s doing, disclose that behavior, and get appropriate consent.

This ‘vulnerability’ was first disclosed at the recent DefCon security conference. Another reason to invest in a testing lab, or secure a vendor who can do a technical screening of your products before you go live with them.

BTW: a good example of the difference between privacy and security. According to screenshots in the complaint, it appears in-app disclosures said the connection was secure, but was silent on whether the connection was private.


August 2016

$9 Million Deal Approved In HTC, Samsung Data Suit

In re Carrier IQ Consumer Privacy Litigation
Order approving $9M settlement – AT&T Mobility Inc., HTC Corp., LG Electronics Inc., Motorola Mobility Inc., Samsung Electronics Co. and Sprint Corp allegedly tracked and recorded private user information – without knowledge or consent – from plaintiffs’ mobile phones through use of pre-installed Carrier IQ software. The Carrier IQ software – allegedly installed on 141,000,000 mobile devices worldwide – was allegedly designed and deployed to intercepts private communications, content, and data, including: URLs containing HTTP and HTTPS query strings embedded with Internet search terms user names, passwords, granular geo-location information, SMS text message content, and application purchases and uses. Carrier IQ allegedly failed to implement reasonable security controls in the collection and use of the aforementioned data.

In addition to privacy and security violations, plaintiffs allege the undisclosed software caused harm through taxing device batteries, processors, and memory.

Claims were filed under the Federal Wiretap Act, state privacy statutes (35 states), and state consumer protection acts (21 states), as well as under the Magnuson-Moss Warranty Act, and the Implied Warranty of Merchantability (against the device manufacturers – Plaintiffs claim they would not have purchased mobile devices had they known that the Carrier IQ Software was present).

Highlights include:

  • $9,000,000 settlement
  • $5,900,000 non-reversionary settlement fund for class members
    • $138 – $149 for each class member (expected)
  • $75,000 for plaintiffs/class representatives
    • $3,000 each for plaintiffs/class representatives who expended less than 26 hours (5)
    • $5,000 for remaining plaintiffs/class representatives (12)
  • $655,500 for settlement administration
  • $2,358,933.72 for class counsel (26% of settlement fund)

[N.D. CA; 12-md-02330]
jbho: same as below – if you are asking consumers to install software on their devices, you better know what that software does.

As background, independent security and privacy researcher, Trevor Eckhart, discovered Carrier IQ running on his Android OS HTC mobile device in November 2011. Working with others in the Android developer community, Eckhart published the results of his Carrier IQ Software analysis on his website, The analysis showed software hidden deeply on his device that would never be known to the average user (finding the software required ‘rooting’ a device, which not only requires great technical skill, but voids warranties as well). For more information, check our Eckhart’s video at .

BTW: HTC entered into a consent order for its involvement in the Carrier IQ affair. No fines were issued, but they got the usual compliance program requirements with 20 years of biennial audits.


Fan Say Golden State Warriors Eavesdropped Through Mobile App (UPDATED)

Satchell v. Sonic Notify
Class complaint – Defendants allegedly intercept consumers’ oral communications without their consent. Interception was allegedly performed by a Golden State Warriors mobile app, developed by mobile app company Yinzcam, using Sonic Notify’s Signal360 audio beacon technology. The audio beacon technology allegedly secretly activated the built-in microphone on a consumer’s mobile – irrespective of whether a consumer was actively using the App or if it was merely running in the background. Plaintiff claimed the audio beacon technology was not disclosed in the App’s Terms of Service, Privacy Policy, or system settings.

UPDATE: 13Feb2017 – Dismissed (leave to amend)
The court ruled that although plaintiff had standing – invasion of privacy was an injury-in-fact – plaintiff failed to show communications were ‘intercepted’ since she could not show defendants acquired or used the contents of any communication.
(Doc 54 – Order on Motion to Dismiss)

[N.D. CA; 3:16-cv-04961]
jbho: same as above, if you are asking consumers to install software on their devices, you better know what that software does. And get consent for that processing.

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