![]() ![]() Regarding Apple’s right to access and collect data, the Software License Agreement provides the following:Ĥ. Now, do I think the plaintiffs read this? Of course not … who does, right? But that’s irrelevant, they indicated by their use that they had and, although these agreements now make liars out of all of us, they are still enforceable agreements … haven’t you heard about Hotz, the guy who hacked his own Sony PS3 and got smacked down for it because in doing so he violated the agreement that was similar to this one? (If you don’t believe me, check out what he agreed to just to make it all go away: Final Judgment Upon Consent and Permanent Injunction ) IF YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE iPHONE TO THE PLACE WHERE YOU OBTAINED IT FOR A REFUND. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE iPHONE. BY USING YOUR iPHONE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. ![]() PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING YOUR iPHONE. Now, following on the reasoning of Rodriguez, one would think that if a computer owner can contractually define the limits of access to its computer, so too can it define the rights to access its computer, correct?Īpple’s iPhone Software License Agreement provides as follows: A violation of this defined access will be found to have exceeded authorized access and violated the CFAA: “Rodriguez exceeded his authorized access and violated the Act when he obtained personal information for a nonbusiness reason.” ![]() The Rodriguez Court essentially finds the same is true for the computer owner’s ability to define one’s right to access the computer and information thereon by contractual agreements such as policies, employment agreements, and presumably terms of use agreements. The general principle deduced from John is that one’s right to access a computer and use data obtained therefrom can be defined by either the computer’s owner (through contracts such as policies and agreements), or by law, so that the one accessing knows what is the proper intended use of that data, and any use of that data in violation of that intended use is unauthorized for purposes of the CFAA. Rodriguez, an employment case under the CFAA in which it seemed to align itself conceptually with the Fifth Circuit’s “Intended-Use Theory” set out in United States v. The Eleventh Circuit, on December 27, 2010, handed down its opinion in United States v. The Apple iTracking Case was filed in the United States District Court in Florida which is in the Eleventh Circuit. In yesterday’s blog I discussed what I referred to as the Trilogy of Access Theories and (very briefly) summarized the three general lines of cases on this issue of access. This is the first hurdle the plaintiffs must clear. Under the “fraud” violation the plaintiffs must prove that Apple accessed a computer (see Smartphones and the Computer Fraud and Abuse Act–Already Covered?) “without authorization” or that its access of the computer “exceeds authorized access”. We will start by looking at access, as courts usually do when analyzing Computer Fraud and Abuse Act cases. Subsection (a)(5)(A) which provides that a violation is committed by “hoever … knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer.Īpple will certainly file a Motion to Dismiss the Computer Fraud and Abuse Act claim on the issues of “jurisdictional loss” and “damage” and, in all likelihood, “access” as well.(Last weeks’ blog Basic Elements of a Computer Fraud and Abuse Act – “Fraud” Claim sets out the elements of proof for this “standard” claim) and Subsection (a)(2)(C) which is the standard “obtains information from a protected computer” “fraud” section that is almost always used.Their claims are premised upon 2 violations of the CFAA: The plaintiffs seek to make this a class action lawsuit and claim it is worth in excess of $5,000,000 for violations of, among other things, the Computer Fraud and Abuse Act (“CFAA”). ![]() Apple, Inc., (the “Apple iTracking Case”) filed in the Middle District of Florida, Tampa Division on April 22, 2011. These are the allegations underlying the plaintiff’s claims in Ajjampur v. But first let’s start with a little background … Apple Was iTracking and Got Sued!Īs anyone who is not living under a rock knows by now, Apple has been sued over the allegations that it has surreptitiously tracked and recorded the details of all iPhone and 3G iPad owners’ movements since approximately June 2010. Image via CrunchBase From what I’ve seen thus far, it should. ![]()
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