The smartphone in your briefcase is probably tracking and storing your location. As a consumer, you may enjoy this feature and even pay a premium to enhance its use. However, other smartphone owners are less impressed. They feel the manufacturers’ failure to disclose that such tracking occurs violates their privacy rights and constitutes fraud.
To mobilize these claims, unhappy consumers are turning to an old favorite — the Computer Fraud and Abuse Act, 18 U.S.C. §1030. The CFAA makes it unlawful for a person to access a protected computer without authorization, or to exceed authorized use. But does that mean mobile device manufacturers are guilty of a federal crime or subject to civil penalties for tracking a user’s location without the user’s consent? At least two Apple product owners say they are, and have filed a complaint to that effect. As a result, the courts are once again asked to determine the limits of the CFAA.
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