Is there any such thing as a free app? In Albilia v. Apple inc, Justice Pierre Nollet of the Quebec Superior Court authorized a class action law suit against Apple in relation to the collection of personal information by third party application (app) developers via Apple devices such as the iPhone and the iPad.
The petitioner alleges that Apple encourages and supports the development of third party apps as a means of bolstering the popularity and sales of its devices. He also alleges that Apple permits third party app developers to harvest personal the information of users from their devices without their knowledge or consent. In particular, he alleges that such information may include precise location information, the unique device identifier, the user’s name, gender, age, postal code and time zone, information about activities performed using the app. He also alleges that this ongoing harvesting of personal information uses up the resources of the devices without the permission of the device owners. The class action is similar to two others that have been filed in the United States against Apple.
Although the petitioner initially sought to certify a Canada-wide class of affected persons, the judge limited the class to Quebec residents. He did so because the petitioner had failed to establish that the laws in relation to privacy across Canada were equivalent to those in Quebec. Indeed, although there are some similarities, it is fair to say that both the Civil Code of Quebec and the Quebec Charter of Human Rights and Freedoms offer both different and quite likely more extensive protection for privacy than do the laws in the common law provinces and territories.
Justice Nollet ultimately certified two classes for the law suit. The first consists of:
all residents in Quebec who have purchased or otherwise acquired an iPhone or iPad (“iDevice”) and who have downloaded free Apps from the App Store onto their iDevices since December 1, 2008 through to the present.
A second class relates specifically to concerns about the collection of geolocation information. This class consists of:
all residents in Quebec who have purchased or otherwise acquired an iPhone and turned Location Services off on their iPhones prior to April 27, 2011 and have unwittingly, and without notice or consent transmitted location data to Respondents’ servers.
The questions to be explored in the class action law suit include issues regarding whether the respondent Apple facilitated profiling of individual users or disclosed personal information without users’ consent to third party app developers. Other issues include whether location information could be collected from devices even after the location services functions are turned off by the user. The litigation also involves issues relating to consent by users to information gathering practices by both Apple and app developers. In bringing his motion the petitioner referred to a recent study by Eric Smith that detailed the information collecting practices of iPhone apps.
The collection of personal information from mobile devices – including data about a user’s online activities and detailed location information – raises significant privacy concerns. Many “free” apps may use information gathering as a means of generating a revenue stream; the information gathered may have nothing to do with the functions of the app itself. Users of mobile devices may not be sufficiently aware of the detailed location information that can be collected and shared when the location functions of their device are turned on; alternatively, they may turn these functions on specifically to enable certain useful features of their device without realizing that the same information may also be collected and used by apps whose functions are completely unrelated to their location. As with many other contexts, the user who downloads apps may have little time or attention to allocate to reading the detailed user agreements and privacy policies that may accompany their new apps. While courts may continue to insist that users are bound by these agreements, there is a growing concern that the sheer number, complexity and length of such agreements makes informed consumer consent virtually impossible on a consistent basis.
Class action law suits advance with glacial speed, and it is not likely that the questions raised in this dispute will be answered any time soon. Yet it is important that they be asked both here and in other contexts. The burden of privacy, in particular of protecting one’s personal information from unwanted profiling and surveillance, is becoming increasingly challenging for individuals. Not only is it difficult to grasp the full range of information that is being collected, by whom, and for what purposes, as we engage in perfectly ordinary day-to-day activities, secondary access to this information by third parties, including police and other state authorities is not at all transparent. In addition to greater scrutiny of data collection practices, attention must also be paid to the issue of consent, which is increasingly becoming a fiction in the face of turgid and impenetrable legal texts accompanying every small piece of software in our lives.