Cousineau v. Microsoft Corp.
2012 U.S. Dist. LEXIS 189347
W.D. Wash.2012Background
- Cousineau alleges Microsoft’s OS 7 design caused her geolocation data to be transmitted despite denying access at the camera prompt.
- OS 7 collects and stores six data types (device IDs, app IDs, date/time, latitude/longitude, cell tower locations, MAC addresses) for geolocation services.
- Location data is transmitted to Microsoft servers and stored in a master database, and also kept on the phone for lost-device functionality.
- Cousineau alleges the camera prompt misled users by suggesting consent controls while a defect in the code continued data transmission.
- Microsoft contends that location services can be disabled in two places (phone settings and per-app prompt) and that consent restrictions may apply.
- Court denies in part and grants in part Microsoft’s motion to dismiss, finding standing for SCA claim but dismissing other claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue under the SCA | Cousineau asserts concrete, particularized injury from data collection | Microsoft contends no injury from mere receipt of data | Cousineau has standing for SCA claim |
| SCA claim—unauthorized access to electronic storage | OS 7 stored location data without consent | MS argues access and storage were authorized or not an injury | SCA claim plausibly stated; provider-consent exception does not apply |
| Wiretap Act claim for intercepted data | Geolocation data constitutes intercepts under §2511(l)(a)/(l)(d) | Contents do not include geolocation data; CSLI not contents | Wiretap Act claims fail as geolocation data not the “contents” of a communication |
| Washington Consumer Protection Act claim | Deceptive privacy practices injure business/property and public interest | Injury to business/property not demonstrated; deception shown | CPA claim fails for lack of injury to business or property |
| Unjust enrichment claim | Microsoft unjustly profited from data collection | No shown financial loss or unjust retention of value by Microsoft | Unjust enrichment claim dismissed |
Key Cases Cited
- Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004) (privacy in electronic storage protection under the SCA)
- In re DoubleClick Inc. Privacy Litigation, 154 F. Supp. 2d 497 (S.D.N.Y. 2001) (CSLI not contents under the Wiretap Act)
- In re § 2703(d) Order, 787 F. Supp. 2d 430 (E.D. Va. 2011) (CSLI records; information as records, not contents)