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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION VIKRAM AJJAMPUR, WILLIAM DEVITO, and CLAUS MEYER, on behalf of themselves and all others similarly situated, Plaintiffs, v. APPLE, INC., Class Action CASE NO.:

Defendant, / AMENDED CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL (Injunctive Relief and Damages Sought) Plaintiffs Vikram Ajjampur, William Devito, and Claus Meyer, on behalf of themselves and others similarly situated, hereby bring this action against Defendant Apple, Inc., and allege as follows: INTRODUCTION 1. This action asserts consumers rights not to have their locations tracked,

stored, and communicated to Apple. Customers buying Apple s newest gadgets want a product; they are not signing up to volunteer for free as mules for Apple s efforts to build its iAds individual location marketing database, which it uses to generate many billions of extra revenue dollars. Apple iPhones and 3G iPads are secretly recording and storing details of

2011 Aaron Mayer

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all their owners movements, reported the British Broadcasting Company. 1 According to security experts Alasdair Allan and Pete Warden, the location data is hidden from users but unencrypted, making it easy for Apple or third parties to later access it. 2 Apple Inc. s collection of this information is clearly intentional. it collects individual user location data.4 2. An Apple webpage apparently targeting an audience of programmers is titled
3

Indeed, Apple has told congress that

Getting the User s Location, in which Apple provides a technical description of how to get location data by using the classes of the Core Location framework. This framework provides several services that you can use to get and monitor the device s current location: The significant-change location service provides a low-power way to get the current location and be notified of changes to that location. (iOS 4.0 and later). The standard location service offers a more configurable way to get the current location. Region monitoring lets you monitor boundary crossings for a defined area.5 Apple collects information about users location data automatically, in some

3.

cases, to update and maintain databases with known location information. Apple s Letter at

iPhone Tracks Users Movements, April 20, 2011. Available at http://www.bbc.co.uk/news/technology13145562 (last visited April 22, 2011). 2 Id. 3 Got an iPhone or 3G iPad? Apple is Recording Your Moves, by Alasdair Allen and Pete Warden, on radar.oreilly.com. Available at http://radar.oreilly.com/2011/04/apple-location-tracking.html (last visited April 22, 2011) (hereafter Recording Your Moves). 4 Apple Inc. s Response to Request for Information Regarding Its Privacy Policy and Location-Based Services, letter from Apple s general counsel Bruce Sewell to U.S. Representatives Edward Markey and Joe Barton. July 12, 2010 (hereafter Apple s Letter), p. 6-9, 12. Available at http://markey.house.gov/docs/applemarkeybarton712-10.pdf. 5 Available at http://developer.apple.com/library/ios/#documentation/UserExperience/Conceptual/Location AwarenessPG/CoreLocation/CoreLocation.html#//apple_ref/doc/uid/TP40009497-CH2-SW1 (last visited 4/28/2011).

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6.

A user s

[l]ocation

is available to anyone with certain commercially available

software, says Apple. Id. at 6. 4. The affected devices are the iPhone 3G, iPhone 3GS, iPhone 4, iPod touch and the iPad 3G and iPad Wi-Fi, and in addition,

all of which are capable of running iOS 4

to a more limited extent, some older models of the iPhone, the iPad Wi-Fi, and iPod touch (collectively, the Devices ). Apple s Letter at 4, 5. Apple has insinuated its tracking software onto older Devices through software updates that it recommends to users. 5. Users of Apple products have no way to prevent Apple from collecting their

individual location data because even if users disable a Device s global positioning system (GPS) components, Apple s tracking system remains fully functional. 6 Further, while a Device s location services are toggled to off, the Device simply stores the user s location information for later transmittal to Apple when the location services are toggled back to on.
7

Location services, which are

on

by default, are required for full-

functioning of the Devices. Thus, Apple s location tracking is never off; rather, it can merely be postponed temporarily. PARTIES 6. Plaintiff Vikram Ajjampur is a resident of Hillsborough County, Florida, who

at all relevant times has owned an iPhone and carried it with him everywhere. 7. Plaintiff William Devito is a resident of New York state, who at all relevant

times has owned a 3G iPad and has traveled with it extensively.


6 7

Apple Q&A on Location Data, April 27, 2011, http://www.apple.com/pr/library/2011/04/27location_qa.html. IPhone Stored Location in Test Even if Disabled, by Jennifer Valentino-Devries, Wall Street Journal (WSJ), April 25, 2011; see also House Presses Apple, Google, Others on Location-Tracking Practices, by Yukari Iwatani Kane, WSJ, April 26, 2011.

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8.

Plaintiff Claus Meyer is a resident of Bremen, Germany, who at all relevant

times has owned, used and traveled extensively with an iPhone. 9. Defendant Apple, Inc. is a California corporation with its principal place of

business in California. JURISDICTION AND VENUE 10. This Court has jurisdiction over this action under 28 U.S.C. 1332(d)(2). The

amount in controversy between the Class as defined herein and the Defendant exceeds $5,000,000, exclusive of interest and costs. The Class as defined herein consists of

individuals from fifty different states and countries around the globe. Greater than two-thirds of the Class members reside outside of California the state in which Apple is a citizen. 11. Additionally, this Court has federal question jurisdiction under 28 U.S.C.

1331 based on the federal civil causes of action provided in: 18 U.S.C. 1030(g); 18 U.S.C. 2520; 47 U.S.C. 605(e)(3)(A); 18 U.S.C. 2707; and 47 U.S.C. 207. 12. Venue is proper in this Court pursuant to 28 U.S.C. 1391 in that Plaintiff

Vikram Ajjampur is a resident of this district, many of the acts and transactions giving rise to this action occurred in this district, and because Apple: a. is authorized to conduct business in this district and has availed itself of the laws and markets within this district through the promotion, marketing, distribution and sale of its products in this district; b. does substantial business in this district; and c. is subject to personal jurisdiction in this district.

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APPLE S PRIVACY VIOLATIONS 13. Apple s Devices log, record and store users locations based on latitude and Recording Your Moves. Apple does this both

longitude alongside a timestamp.

domestically in the United States and internationally. The Devices store this information in a file called consolidated.db or something similar. Id. Apple intentionally began

recording this information with the release of its iOS 4 operating system in June 2010, 8 to accrue a marketing database worth billions of dollars. 14. Apple uses a cell-tower triangulation to obtain user location. Recording Your

Moves. Alternatively, Apple may use wireless hotspots or GPS data to obtain user location: Apple automatically collects Wi-Fi Access Point Information and GPS coordinates when a device is searching for a cellular network, such as when the device is first turned on or trying to re-establish a dropped connection. The device searches for nearby Wi-Fi access points for approximately thirty seconds . This information and the GPS coordinates are stored (or batched ) on the device and added to the information sent to Apple. Apple Letter at 7, fn. 8. 15. Apple Devices download the user location data to the user s computer when

the mobile Device synchronizes ( syncs ) or shares data with the computer. The data is unencrypted on the mobile Devices and also on users computers that sync with those mobile Devices. 16. Users of Apple s Devices, including Plaintiffs, were unaware of Apple s

logging, recording and storing the latitude and longitude of their locations, alongside a

iPhone Keeps Recording of Everywhere You Go, by Charles Arthur of the London newspaper Guardian, Available at http://www.guardian.co.uk/technology/2011/apr/20/iphone-tracking-prompts-privacy-fears (last visited April 22, 2011).

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timestamp, and did not consent to such tracking. 17. Apple s Terms and Conditions
9

do not disclose its comprehensive tracking

of users. Plaintiffs and other users did not provide any sort of informed consent to the tracking at issue in this case. 18. Apple collects the location information covertly, surreptitiously and in

violations of law. 19. Apple tracks users locations on its own, separate, apart and in addition to the

information it collects in conjunction with other businesses that develop applications for Apple s Devices. This action is not about the applications collection of information on users; rather, it is specifically in objection to Apple s own collection of user location information. 20. Apple s Devices are carried with users to essentially every location they

travel to, making the information collected by Apple highly personal. Apple s creation and collection of such data violates people s rights through the ordinary purchase of a Device. 21. In addition to directly violating users rights, the accessibility of the which they do not relinquish to Apple

unencrypted information collected by Apple places users at serious risk of privacy invasions and crimes. Even Apple has stated that a user s [l]ocation certain commercially available software. Apple Letter at 6, 7. 22. The individual location data is, or can be, readily combined by Apple with is available to anyone with

each device s unique device identification (UDID), to identify particular users either by

Available at http://www.apple.com/legal/itunes/uk/terms.html.

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name or otherwise. These UDIDs can never be changed or turned off, and are not secret, partly because Apple regularly shares them with third parties.10 Along with the UDID and location data, Defendants transmit other user information, including at least age, gender, income, ethnicity, sexual orientation and political views in addition to income and parental status. Watching You. Further sources for data include the phone s camera, memory, contact list, and more than 100 others. Watching You. All these data sources are Sensitive Information about users. According to the Mobile Marketing Association, an industry trade group, In the world of mobile, there is no anonymity. Watching You. Apple

acknowledges that the UDIDs are personally identifiable information, partly due to the ease with which they can be combined with other personal details about people names or email addresses 23. that Apple has. Id. such as

Furthermore, it is no accident that Apple s deployment of its location data

and Sensitive Information tracking and storing coincided with the company s deployment of iAds Apple s entry into the race to build massive databases capable of pinpointing
11

people s locations via their cellphones. 24.

Apple has a strong incentive to violate users privacy. Databases such as the

one Apple is assembling could help them tap the $2.9 billion market for location-based services expected to rise to $8.3 billion in 2014, according to research firm Gartner Inc.
13 12

Our iAds advertising system can use location as a factor in targeting ads.

Thus, Apple

has billions of reasons annually not to allow users to disable its location services, and to
10 11

Your Apps Are Watching You, by Scott Thurm, Yukari Iwatani Kane, WSJ, Dec. 17, 2010 (Watching You). Apple, Google Collect User Data, by Julia Angwin and Jennifer Valentino-Devries, WSJ, April 22, 2011. 12 Id. Angwin and Valentino-Devries for WSJ. 13 Apple Q&A on Location Data, April 27, 2011, supra.

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access users Sensitive Information. 25. Plaintiffs and proposed Class members were harmed by Apple s accrual of

personal location, movement, travel histories and Sensitive Information because their personal computers were used in ways they did not approve, and because they were personally tracked just as if by a tracking device for which, in the U.S., a court-ordered warrant and probable cause would ordinarily be required. 26. Plaintiffs bring this action to stop Apple s illegal and intrusive scheme of

collecting, storing and selling personal location data and Sensitive Information. 27. In the original complaint, Plaintiffs sought an injunction requiring Apple to

disable individual location data tracking in its next-released operating system for the relevant Devices. Five days after Plaintiffs filed their original complaint, which was widely disseminated by the media, Apple responded by promising that: Sometime in the next few weeks Apple will release a free iOS software update that: reduces the size of the crowd-sourced Wi-Fi hotspot and cell tower database cached on the iPhone, ceases backing up this cache, and deletes this cache entirely when Location Services is turned off.

In the next major iOS software release the cache will also be encrypted on the iPhone. Apple Q&A on Location Data. 28. Plaintiffs seek a court order requiring these promised changes, to the extent

Apple s iOS 4.3.3, released May 4, 2011 is not as advertised, and in addition, requiring Apple to begin expressly and succinctly disclosing to prospective users that Apple intends to accumulate their individual location data and Sensitive Information. Apple s tracking and

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storing user locations and other Sensitive Information is material and Apple is legally bound to disclose its intentions before potential Device users consummate their Device purchases. 29. Apple s current approach of burying the relevant, though vague, privacy

disclosures in the middle of a 15,166-word document that, they say, consumers are prompted to read before they can buy music from the iTunes store for the first time, has been proven ineffective by the surprise, shock and furor that has resulted from revelations of the true extent of Apple s individual location data and Sensitive Information collection. 30. Apple knew or should have known that consumers would not read a 15,166-

word document before clicking to allow a software update or consummating the purchase of a song or movie. A novel is 60,000 words. It is inconceivable that Apple could believe in good faith that someone trying to download a song would take time out to read over of a novel. By comparison, this amended complaint is about 11,000 words; at that length it spans forty-seven pages and requires two hours on a full-sized screen to read carefully. Apple should know that consumers are not inclined to spend hours reading Apple s Terms and Conditions mini-novel before consummating the purchase of a new hit song on iTunes. 31. motive Apple concealed its intent to gather user location data, veiled its marketing albeit thinly to accumulate that data and sell billions of dollars worth of iAds,

and since the filing of the original complaint has embarked on a media strategy claiming that its collection of user location data was the result of a bug, a mistake.14 Plaintiffs wholly reject this latest misinformation from Apple. 32. Plaintiffs therefore seek a further injunction requiring Apple to, through a

14

Apple Q&A on Location Data, April 27, 2011, supra, q. 6, 7.

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corrective media campaign, affirmatively and candidly inform the public and its millions of Device users of the true and full extent of Apple s tracking behavior. Full page

advertisements in the major national and international newspapers would be a start. 33. Apple s acts and omissions have directly and proximately caused Plaintiffs

and Class members damages and losses: a. Exposing their location data in an unencrypted database; b. Accessing and transmitting their Sensitive Information; c. Shortening the battery life of their Devices by drawing power for the unauthorized creation and accumulation of individual location data through communication with cell towers, wireless hotspots and GPS infrastructure; d. Requiring more frequent recharges of Device batteries and the expenses associated therewith; e. Reducing the storage capability of their devices by covertly allocating limited device resources to create and store a database of individual user location information; f. Creating longer processing times for legitimate Device uses because of resources drawn on by Apple s location data activities; g. Causing an increase in data transfer expenses for users with limited data packages. 34. Plaintiffs seek damages for violations of their statutory and common law

rights in two classes: (1) a United States consumer class, and (2) an international consumer

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sub-class, based on federal statutes that the U.S. government customarily applies to domestic perpetrators who have acted on computers abroad.15 CLASS ACTION ALLEGATIONS U.S. Class 35. Plaintiffs Ajjampur and Devito bring this action on behalf of themselves and

proposed plaintiff U.S. Class members under Rules 23(b)(2) and (3) of the Federal Rules of Civil Procedure. The proposed U.S. Class consists of: All persons in the United States who purchased, owned or carried around an iPhone with the iOS 4 operating system (which include the iPhone 3G, iPhone 3GS, iPhone 4, and iPod touch) or an iPad 3G or iPad Wi-Fi between the release of those products for sale by Apple and the present. Excluded from the Class are those who purchased the products for resale; members of the federal judiciary and their relatives; and Defendant s officers, directors and employees. 36. United States is used in a geographical sense, and comprises the States, the

District of Columbia and the Commonwealth of Puerto Rico, and the organized territories under the jurisdiction of the United States Government. 37. While the exact number of U.S. Class members is unknown to the Plaintiffs
16

at this time, there are likely tens of millions

of members of the proposed U.S. Class, as

approximately 59 million people in the U.S. now have an iPhone, and many of those run the iOS 4 operating system at issue in this case, and about 10 million people have purchased an iPad, many of those the 3G or Wi-Fi versions at issue here. The U.S. Class is so numerous that joinder of all members of the U.S. Class is impracticable. 38.
15

This action involves questions of fact common to all U.S. Class members

See e.g. http://www.justice.gov/criminal/cybercrime/palaSent.pdf. The term Class is used to refer to both the proposed U.S. Class and the proposed International Class. 16 Apple Q&A on Location Data, q. 3, Apple uses data that is generated by tens of millions of iPhones sending the geo-tagged locations of nearby Wi-Fi hotspots and cell towers .

11

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because all U.S. Class members purchased, own or use iPhones or iPads under uniform Apple privacy policies. 39. This action involves questions of law common to all Class members because: a. The federal laws violated here are national in scope and apply to all prospective U.S. Class members (as well as members of the International sub-class); b. Each state has enacted laws comparable to the Federal Trade Commission Act, known as little FTC acts, which provide private causes of action with sufficient uniformity that Apple s standardized practices of collecting location information violated the little FTC acts of each state in the same way; and c. Apple s privacy invasions have violated Plaintiffs and U.S. Class members other state statutory and common law rights in uniform ways. 40. The claims of Plaintiffs Ajjampur and Devito are typical of those of other

members of the U.S. Class as there are no material differences in the facts and law underlying the claims of U.S. Plaintiffs and the U.S. Class and by prosecuting their claims Plaintiffs will advance the claims of Class members. 41. The common questions of law and fact among all U.S. Class members

predominate over any issues affecting individual members of the U.S. Class, including but not limited to: a. whether Apple obtained and stored Plaintiffs location information;

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b. whether Apple failed to disclose material terms in its privacy policy regarding its collection of users location information; c. whether Apple intends to market or otherwise exploit users location information; d. whether the alleged conduct constitutes violations of the laws asserted herein; e. whether U.S. Plaintiffs and U.S. Class members are entitled to declaratory and injunctive relief; f. whether U.S. Plaintiffs and U.S. Class members have sustained monetary loss and the proper measure of that loss; g. whether U.S. Plaintiffs and U.S. Class members have sustained consequential loss, and to what measure; and h. whether Apple s acts and omissions warrant punitive damages. 42. The U.S. Plaintiffs claims are typical of the claims of the proposed U.S.

Class, and those Plaintiffs will fairly and adequately represent and protect the interests of the proposed U.S. Class. Plaintiffs have retained counsel competent and experienced in the prosecution of this type of litigation. International Class 43. All Plaintiffs bring this action on behalf of themselves and proposed plaintiff

International Class members under Rules 23(b)(2) and (3) of the Federal Rules of Civil Procedure. The proposed International Class consists of: All persons worldwide who purchased, owned or carried around an iPhone with the iOS 4 operating system (which include the iPhone 3G, iPhone 3GS,

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iPhone 4, and iPod touch) or an iPad 3G or iPad Wi-Fi between the release of those products for sale by Apple and the present. Excluded from the International Class are those who purchased the products for resale. 44. While the exact number of International Class members is unknown to the

Plaintiffs at this time, there are likely tens of millions of members of the proposed International Class, as approximately half of Apple s iPhone and iPad sales occur outside the U.S. The International Class is so numerous that joinder of all members of the

International Class is impracticable. 45. This action involves questions of fact common to all International Class

members because all International Class members purchased, own or use iPhones or iPads under uniform Apple privacy policies. 46. This action involves questions of law common to all International Class

members because: a. The Computer Fraud and Abuse Act, violated here, applies to Apple s actions against all prospective International Class members; b. Violations all the federal laws alleged here are routinely enforced against domestic U.S. defendants, such as Apple, for transgressions against computers abroad. 47. The federal law claims of Plaintiffs are typical of those of other members of

the International Class as there are no material differences in the facts and law underlying the claims of Plaintiffs and the International Class and by prosecuting their claims Plaintiffs will advance the claims of International Class members. 48. The common questions of law and fact among all International Class

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members predominate over any issues affecting individual members of the Class, including but not limited to: a. whether Apple obtained and stored Plaintiffs location information; b. whether Apple obtained Plaintiffs Sensitive Information; c. whether Apple failed to disclose material terms in its privacy policy regarding its collection of users location information; d. whether Apple has already or intends to market or otherwise exploit users location information; e. whether the alleged conduct constitutes violations of the federal laws asserted herein; f. whether Plaintiffs and International Class members are entitled to declaratory and injunctive relief; g. whether Plaintiffs and International Class members have sustained monetary loss and the proper measure of that loss; h. whether Plaintiffs and International Class members have sustained consequential loss, and to what measure; and i. 49. whether Apple s acts and omissions warrant punitive damages. Plaintiffs claims are typical of the claims of the proposed International Class,

and Plaintiffs will fairly and adequately represent and protect the interests of the proposed International Class. Plaintiffs have retained counsel competent and experienced in the

prosecution of this type of litigation.

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Both Classes: The U.S. Class, and the International Class 50. The questions of law and fact common to the Class17 members, some of

which are set out above, predominate over any questions affecting only individual Class members. 51. Class treatment of the claims set forth herein is superior to other available

methods for the fair and efficient adjudication of this controversy. The expense and burden of individual litigation would make it impracticable or impossible for proposed Class members to prosecute their claims individually. Absent a class action, a multiplicity of individual lawsuits would be required to address the claims between Class members and Apple, and inconsistent treatment and adjudication of the claims would likely result. 52. The litigation and trial of Plaintiffs claims is manageable. Apple s

standardized Terms and Conditions at issue, Apple s uniform deployment of operating systems that track each user in identical ways, the consistent provisions of the relevant laws, and the readily ascertainable identities of many Class members demonstrate that there would be no significant manageability problems with prosecuting this lawsuit as a class action. Additionally, notice can be sent directly to both Classes through a software update, or similar, of the affected Devices. 53. Apple has acted or refused to act on grounds that apply generally to the Class

so that final injunctive relief and corresponding declaratory relief are appropriate. 54. Unless a class-wide injunction is issued, Apple will continue to commit the

violations alleged, and the members of the Class will continue to be tracked, unlawfully

17

The term Class refers to both the proposed U.S. Class and the proposed International sub-class.

16

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surveilled, and potentially endangered. 55. Apple s acts and omissions are the direct and proximate cause of damage as

described in the following Counts: COUNT I (Both Classes: Injunction and Declaration) 56. Plaintiffs re-allege and incorporate by reference the allegations contained in

the paragraphs above as if fully set forth here. 57. Plaintiff Vikram Ajjampur purchased, owns, uses and carries with him

Apple s iPhone with iOS 4 and has done so at all times relevant to this action. 58. Plaintiff William Devito purchased, owns, uses and carries with him Apple s

3G iPad and has done so at all times relevant to this action. 59. Plaintiffs relied on the Terms and Conditions of Apple s privacy policy,

which did not explain the pervasive location data tracking, storing and transmitting that Apple intended to undertake and did undertake. 60. Apple knew that ordinary consumers acting reasonably would not understand

the Apple privacy policy to include the location data tracking, storing, syncing and transmitting of Sensitive Information at issue in this case. 61. Irreparable injury has resulted and continues to result from Apple s Once Plaintiffs began carrying their

unauthorized tracking of millions of Americans.

respective Apple devices, Apple began tracking their locations. This has happened in the past and continues to happen all across the United States and around the world. It is unconscionable to allow Apple to continue unlawfully and without proper consent tracking Plaintiffs and proposed Class members. If Apple wanted to track the whereabouts of each of

17

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its products users, it should have obtained specific, particularized informed consent such that Apple consumers across America would not have been shocked and alarmed to learn of Apple s practices in recent days. 62. Inadequate remedy at law exists because users of Apple products have no

way to prevent Apple from collecting this information because even if users disable the iPhone and iPad GPS components, Apple s tracking system remains fully functional. 63. Balance of the hardships favors Plaintiffs and the Class because it is easier

for Apple to stop unlawfully tracking and storing the every move of users around the world than it is for individual consumers to circumvent Apple s sophisticated tracking programs. To require that Plaintiffs and the Class bear the consequences of Apple s deceptive privacy policy and unlawful acquisition of personal location information would be inequitable. Further, since the initial complaint in this case was filed, Apple has indicated that it is capable of stopping its unlawful tracking within a matter of weeks. 18 64. The public has an interest in being able to travel without being tracked, and

without that unencrypted tracking information being stored and synced with computers that are networked to the internet and are unsecured. The public interest would not be disserved, and indeed would be advanced, by entering an injunction against Apple. See eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006). 65. The injunction should require Apple to reconfigure its software so that users

personal location data and Sensitive Information is neither collected, nor synced to other computers. In addition, the injunctive remedies sought above should be implemented and

18

Apple Q&A on Location Data, April 27, 2011, supra.

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Apple should be ordered to stop exploiting individual location data through iAds. Users have not agreed to volunteer as Apple s data-gathering mules. COUNT II (Both Classes: Computer Fraud and Abuse Act, 18 U.S.C. 1030) 66. Plaintiffs re-allege and incorporate by reference the allegations contained in

the paragraphs above, and those that come after as if fully set forth here. 67. By secretly installing software that records users every moves Apple has

accessed Plaintiffs computers, in the course of interstate commerce, foreign commerce, or communication, in excess of the authorization provided by Plaintiffs as described in the Computer Fraud and Abuse Act (the Fraud Act ) 18 U.S.C. 1030(a)(2)(C). 68. Plaintiffs computers, and those of the Class, are protected computers

pursuant to 18 U.S.C. 1030(e)(2)(B) because they were used in or affected interstate or foreign commerce or communication. Plaintiffs computers were purchased in interstate or foreign commerce and have in turn facilitated additional purchases in interstate or foreign commerce. 69. Plaintiffs iPhones and iPads, and the Devices of the Class, are also protected the term protected

computers pursuant to 18 U.S.C. 1030(e)(2)(B) (stating that computer means a computer

which is used in or affecting interstate or foreign commerce

or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication 70. ).

By tracking individual location data, and by accessing Sensitive Information,

Apple exceeded the scope of any authorized access provided by Plaintiffs. See 18 U.S.C. 1030(e)(6).

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71.

Plaintiffs have suffered damages by Apple s impairment of the integrity of

their privacy on Apple Devices, by Apple s creation of a database of Plaintiffs location data, and by Apple s transferring that database to other computers. 1030(e)(8). 72. Plaintiffs have suffered losses as a direct and proximate result of Apple s See 18 U.S.C.

acts and omissions as that term is defined by 18 U.S.C. 1030(e)(11), including the cost of responding to Apple s offenses, conducting damage assessments, and restoring the data, program, system, and other information to its condition prior to the offense. Plaintiffs have also suffered consequential damages from Apple s acquisition and transmittal of their Sensitive Information. 73. Apple further violated the Fraud Act by causing the transmission of a in (1) deploying the iOS 4 operating systems, (2)

program, information, code or command

as a result of the syncing of user handheld devices with their laptop or desktop computers, and (3) by transferring the database it created for each user back to Apple and as a result

caused harm aggregating at least $5,000 in value. See 18 U.S.C. 1030(c)(4)(i)(I). 74. By tracking individual user location data, and by storing it in an unencrypted

database, Apple s actions have threatened public safety and welfare. Collecting and storing information pertaining to an individual s routine movements makes that individual more susceptible to stalking and other crimes. A user s [l]ocation is available to anyone with

certain commercially available software, says Apple. Apple Letter at 6, 7. Plaintiffs risks of such crime, and that of the proposed Class, have been increased by Apple s actions, creating a threat to public safety. See 18 U.S.C. 1030(c)(4)(i)(IV).

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75.

Plaintiffs and the Class have suffered damages, and those damages have

affected ten or more protected computers over the past one-year period. See 18 U.S.C. 1030(c)(4)(i)(VI). 76. Plaintiffs bring this Count as a stand-alone cause of action under 18 U.S.C.

1030(g) for both Classes, and as a predicate violation for other Counts asserted in this complaint on behalf of the U.S. Class. 77. Apple s actions were knowing or reckless and, as described above, caused

harm to Plaintiffs and proposed Class members. 78. Plaintiffs seek recovery for these damages and losses, and those of the Class,

as well as injunctive and declaratory relief to prevent future harm. COUNT III (Both Classes: Wire/Electronic Communications Interception, 18 U.S.C. 2510 et seq.) 79. Plaintiffs re-allege and incorporate by reference the allegations contained in

the paragraphs above, and those that come after as if fully set forth here. 80. Apple s programmed communication between its users Devices and cell and between users Devices and Apple s

towers, wireless hotspots, and GPS infrastructure own computers

is either wire communication under 18 U.S.C. 2510(1) because wires

are required between the point of origin and the point of reception, or, is electronic communication under 18 U.S.C. 2510(12) because data is transmitted by wire, radio, electromagnetic, photo-electronic or photo-optical systems, or the like, that affect interstate commerce or foreign commerce. 81. 82. Plaintiffs and Class members are users under 18 U.S.C. 2510(13). Apple s communications are readily accessible to the general public under

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18 U.S.C. 2510(16), in that they are not encrypted, and are stored in unencrypted form. Indeed, even Apple agrees that a user s [l]ocation commercially available software. Apple s Letter at 6. 83. Apple intentionally intercepts Plaintiffs and Class members wire or is available to anyone with certain

electronic communications. See 18 U.S.C. 2511(1)(a). 84. Apple intentionally discloses or endeavors to disclose its users location data,

which data is content of wire or electronic communication, through iAd and otherwise. See 18 U.S.C. 2511(1)(c). 85. Apple intentionally uses, or endeavors to use, the contents of its location data

tracking of its users and users Sensitive Information in violation of 18 U.S.C. 2511(1)(d). 86. Apple knows or has reason to know that the personal location data

information it obtained from its users was obtained through the interception of a wire or electronic communication because Apple wrote the programming code to accomplish this result. See 18 U.S.C. 2511(1). 87. Apple has intentionally sent or carried in interstate commerce its Devices,

which are electronic, mechanical or other devices and the relevant programming code. See 18 U.S.C. 2512(1)(a). 88. Although consumers employ these Devices for other uses, Apple s primary

use for them is to harvest individual user location data to market or sell for billions of dollars annually via Apple s iAds. Apple manufactures, assembles, possesses, and sells electronic, mechanical or other devices, knowing or having reason to know that the design of such Devices renders them primarily useful for the purpose of the surreptitious interception of

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wire or electronic communications. 89. These Devices have been sent through the mail or transported in interstate

commerce. See 18 U.S.C. 2512(1)(b). 90. Apple has advertised the surreptitious interception capabilities of its devices

by electronic means to third-parties interested in using the personal location information for marketing and other purposes. Apple s iAds is an example of this. Apple has known the content of these advertisements and known that they would be transported interstate. 91. Plaintiffs and Class members location data created and collected by Apple

was intentionally used or disclosed by Apple to third parties for marketing purposes, or Apple planned and endeavored to disclose such information, as with its iAds. See 18 U.S.C. 2520(a). 92. Plaintiffs seek injunctive and declaratory relief to stop Apple from creating

and collecting their personal location data. 93. 94. incurred. 95. Plaintiffs bring this Count as a stand-alone cause of action under 18 U.S.C. Plaintiffs seek damages under 18 U.S.C. 2520(c)(2). Plaintiffs seek a reasonable attorney s fee and other litigation costs reasonably

2520 for both Classes, and as a predicate violation for other Counts asserted in this complaint on behalf of the U.S. Class. COUNT IV (Both Classes: Unlawful Access to Stored Communications, 18 U.S.C. 2701) 96. Plaintiffs re-allege and incorporate by reference the allegations contained in

the paragraphs above, and those that come after as if fully set forth here.

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97. 98.

Apple s Devices facilitate electronic communications services. Apple has knowingly and intentionally accessed, without authorization from

users, the Device facilities through which electronic communication services are provided. 99. Apple has knowingly and intentionally exceeded its authorization to access

users Devices, and has thereby obtained or altered a wire or electronic communication while it is in electronic storage on users devices and on the computers with which users sync their devices. Apple has done this by creating, storing, and manipulating a database of Plaintiffs location data and Sensitive Information without their authorization. 100. Plaintiffs did not authorize Apple s conduct and are persons aggrieved by

Apple s violations and bring this Count under 18 U.S.C. 2707. 101. Apple has recently stated that its collection of individual location data was an

unintentional bug in its operating systems. If it truly was a bug, then Plaintiffs could not have possibly authorized Apple to collect their individual location data because even Apple, the author of its own privacy Terms and Conditions, did not envision the individual location data tracking. 102. Plaintiffs seek an injunction to stop Apple from continuing its violations, or

from resuming those violations in the future. 103. Apple s violations have directly and proximately damaged Plaintiffs and

Apple has realized significant profits as a result of its violations. 104. Plaintiffs seek damages under 18 U.S.C. 2707(c) of $1000 or greater for

each violation, where each Class member is a person aggrieved and the quantity of Apple s violations equal the number of Class members.

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105. incurred. 106.

Plaintiffs seek reasonable attorney s fees and other litigation costs reasonably

Plaintiffs bring this Count as a stand-alone cause of action under 18 U.S.C.

2701 et seq. for both Classes, and as a predicate violation for other Counts asserted in this complaint on behalf of the U.S. Class. COUNT V (Both Classes: Unauthorized Publication or Use of Communications, 47 U.S.C. 605) 107. Plaintiffs re-allege and incorporate by reference the allegations contained in

the paragraphs above, and those that come after as if fully set forth here. 108. Apple, through its devices, willfully and purposefully received, assisted in

receiving, transmitted, or assisted in transmitting interstate or foreign communication by wire or radio the individual location data it creates, stores, and shares or intended to share, or the Sensitive Information of each Device user. 109. Apple has divulged or published the existence, contents, substance or effect of

such user communications through unauthorized channels, including through iAds. 110. Plaintiffs and Class members have proprietary rights in their location data that

was intercepted by Apple. 111. Apple has collected and continues to collect Plaintiffs location data for its

own private financial gain or commercial advantage. 112. Plaintiffs are aggrieved by Apple s tracking of their location data and bring

this Count under 47 U.S.C. 605(e)(3)(A). 113. 114. Plaintiffs seek an injunction to stop Apple s interception of their location data. Apple s actions against each Plaintiff and each Class member constitute

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separate violations. 115. Plaintiffs seek damages as calculated under 47 U.S.C. 605(e)(3)(C) of $1000

for each violation, up to $100,000 for each violation because Apple s actions were willfully and purposefully conducted for commercial advantage or private gain. 116. expenses. 117. Plaintiffs bring this Count as a stand-alone cause of action under 47 U.S.C. Plaintiffs seek reasonable attorney s fees and other litigation costs and

605 for both Classes, and as a predicate violation for other Counts asserted in this complaint on behalf of the U.S. Class. COUNT VI (Both Classes: Privacy of Customer Information, 47 U.S.C. 222) 118. Plaintiffs re-allege and incorporate by reference the allegations contained in

the paragraphs above, and those that come after as if fully set forth here. 119. If Apple is, because of its extensive telecommunications service activities,

considered a telecommunications carrier under Title 47 of the U.S. Code, then its users are customers and Apple has violated additional laws and regulations, including 47 U.S.C. 222. 120. Plaintiffs individual location data created and collected by Apple is

customer proprietary network information. 121. Plaintiffs and Class members did not provide Apple with express prior

authorization for Apple s individual location tracking activities, and did not approve the use of, disclosure of, or access to their call location information concerning their use of commercial mobile services.

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122.

Apple has a duty to protect the confidentiality of proprietary information of

and relating to customers, but has breached this duty by collecting, accessing, and sharing individual user location data or Sensitive Information. 123. Apple s collection of this information was not part of its service to users and

was instead part of Apple s introduction of its location-based marketing application iAds. 124. Under this Count, Plaintiffs seek damages, and attorney s fees and costs. See

47 U.S.C. 206, 207. 125. Plaintiffs bring this Count as a stand-alone cause of action under 47 U.S.C.

222 for both Classes, and as a predicate violation for other Counts asserted in this complaint on behalf of the U.S. Class. COUNT VII (U.S. Class Only: Violations of State Computer Crimes Acts) 126. Plaintiffs re-allege and incorporate by reference the allegations contained in

the paragraphs above, and those that come after as if fully set forth here. 127. Computer means an internally programmed, automatic device that performs

data processing. Fla. Stat. 815.03(3). 128. access means to approach, instruct, communicate with, store data, retrieve . Fla. Stat. 815.03(10).

data, or otherwise make use of any resources of a computer 129.

Whoever willfully, knowingly, and without authorization modified commits an offense. Fla.

equipment or supplies used or intended to be used in a computer Stat. 815.05. This is a felony in Florida. 130.

Whoever willfully, knowingly, and without authorization accesses or causes which in whole or

to be accessed any computer, computer system or computer network

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part, is owned by 131.

another commits an offense against computer users. Fla. Stat. 815.06.

In New York, unauthorized use of a computer is a class A misdemeanor, as

is computer tampering. N.Y. Penal Law 156.00 et seq. 132. Plaintiffs Devices are computers within the definitions of both Florida and

New York law. 133. Apple accessed Plaintiffs computers and Devices without authorization.

This constituted unauthorized use or computer tampering under Florida and New York law, respectively. 134. Plaintiffs and U.S. Class members were directly and proximately damaged by

Apple in the amounts they paid for their Devices and seek any other or additional damages afforded under these laws.19 COUNT VIII (U.S. Class Only: Violations of State Wiretapping Laws) 135. Plaintiffs re-allege and incorporate by reference the allegations contained in

the paragraphs above, and those that come after as if fully set forth here. 136. Apple intentionally intercepted or endeavors to intercept the wire or electronic

communications of Plaintiff Ajjampur by surreptitiously creating, recording and transmitting Plaintiffs individual location information. 137. Plaintiff Ajjampur s individual location data is content of wire or electronic

communications. 138. Apple intentionally discloses or has endeavored to disclose Plaintiff

Ajjampur s individual location data to other parties, including through iAds, knowing or
19

The relevant laws of each state are at http://www.ncsl.org/default.aspx?tabid=13492 (last visited 5/9/2011).

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having reason to know that the information was obtained through the interception of a wire or electronic communication in violation of Fla. Stat. 934.03. 139. Apple intentionally uses, or has endeavored to use, Plaintiff Ajjampur s

individual location data for purposes unrelated to the provision of services that Plaintiff has authorized, and specifically for the purposes of creating a database to sell or market Plaintiff s location to third parties so that they can market to Plaintiff. 140. Similarly, under New York law, Apple has unlawfully engaged in intercepting

or accessing Plaintiff Devito s electronic communication by creating, storing or transferring Plaintiff Devito s individual location data. See N.Y. Penal Law 250.05. 141. Apple s creation, storage or transmission of individual location data is

electronic communication under New York law because it requires the transfer of signs, signals, writing, images, data, or intelligence of any nature, and is transmitted in whole or part by wire, radio, electromagnetic, photo-electronic or photo-optical system. See N.Y. Penal Law 250.00. 142. Apple s interception, disclosure, accessing or use of Plaintiffs individual

location data has directly and proximately damaged Plaintiffs and Class members in the ways described throughout this complaint, and Plaintiffs and Class members have suffered losses as a result. COUNT IX (U.S. Class Only: Unfair or Deceptive Acts Violating Each State s Little FTC Acts) 143. Plaintiffs re-allege and incorporate by reference the allegations contained in

the paragraphs above, and those that come after as if fully set forth here. 144. This cause of action is brought by Plaintiff Vikram Ajjampur pursuant to

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Florida s Deceptive and Unfair Trade Practices Act, and by Plaintiff William Devito pursuant to New York s deceptive business practices laws. See Fla. Stat. 501.201; see also N.Y. Exec. Law 63(12), N.Y. Gen. Bus. Law 349 et seq. 145. This Count is brought on behalf of U.S. Class members pursuant to each

state s unfair or deceptive acts and practices (UDAP) statutes, i.e. the Little FTC Acts (hereafter Acts ). The Act of each state follows the Federal Trade Commission Act and provides for a private cause of action. 146. 147. 148. Consumer means an individual . Fla. Stat. 501.203(7). Plaintiffs and U.S. Class members are consumers as defined under these Acts. The FTC Act prohibits an act or practice that violates either the standards for the two are independent of each other. An act or

unfairness, or those for deception

practice may be found to be unfair where it causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition. 15 U.S.C. 45(n). An act or

practice is deceptive if it is likely to mislead a consumer acting reasonably under the circumstances. 149. Apple s inadequate privacy policy disclosures made in its 15,166-word Terms

and Conditions were both unfair and deceptive. 150. Apple s tracking and syncing of Plaintiffs and other users personal

information was both unfair and deceptive because Apple s users had no knowledge of Apple s intent or actions. 151. The Acts of Florida and the other states substantially follow the FTC Act.

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152.

Florida s Act defines a violation:

Violation of this part means any violation of this act or the rules adopted under this act and may be based upon any of the following (a) Any rules promulgated pursuant to the Federal Trade Commission Act, 15 U.S.C. ss. 41 et seq.; (b) The standards of unfairness and deception set forth and interpreted by the Federal Trade Commission or the federal courts; (c) Any law, statute, rule, regulation, or ordinance which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices.20 153. Apple s privacy policy contained deceptive misrepresentations that are

material and are likely to and did deceive ordinary consumers acting reasonably, including the Plaintiffs, into believing that their every move would (1) not be tracked by Apple, (2) then stored for future use in an Apple-designed database, and (3) transmitted to Apple so that (4) it could make billions of dollars in bonus revenue by selling iAds. 154. Apple s omission of its true intent to track users was material to terms and

conditions under which Plaintiffs and U.S. Class members purchased their iPhones, iPads and other Devices. An act or practice is material if it is likely to affect a consumer s decision regarding the product. Plaintiffs and other users would not have purchased Apple products and indeed would have purchased the products of a competitor had they known that their every movement would be tracked and recorded. 155. Here, Apple specifically omitted from its privacy policy any indication that its

products would track users, knowing that such disclosure would prevent consumers from consummating their purchases.

20

Fla. Stat. 501.203(3).

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156. statute says:

Florida s Act declares the acts and omissions of Apple to be unlawful. The

(1) Unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful. (2) It is the intent of the Legislature that, in construing subsection (1), due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of July 1, 2006. Fla. Stat. 501.204. 157. Apple s practices have caused substantial injury to Plaintiffs and U.S. Class

members by depriving them of money they would have spent elsewhere and by covertly delivering software that tracks users every movements. 158. Apple s unfair omissions injure both consumers and competition. Consumers

are injured in all the ways that Plaintiffs have been injured, as described throughout this complaint, and competition suffers in several ways too: (1) honest companies that do not covertly track their customers locations have lost and continue to lose market share to Apple products as already described; (2) Apple is rewarded for its deceit with billions of dollars in revenues (which should all be disgorged); and (3) competitors behaving deceptively creates a race to the bottom, wherein additional companies feel economic pressure to similarly track users whereabouts to later sell and thereby avoid losing further market share in the rapidly growing and competitive market for precise consumer demographic, location and other data. There are no countervailing benefits of Apple s conduct: not to consumers, nor to competition. 159. Apple violated and continues to violate the Acts of each state by engaging in

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the trade practices described above, that have caused and continues to cause substantial injury to consumers, which are not reasonably avoidable by the consumers themselves, in transactions with Plaintiffs and the U.S. Class which were intended to result in, and did result in, the sale of the iPhone, iPads and other Devices. 160. There were reasonable alternatives available to further Apple s legitimate

business interests, other than the conduct described herein. Apple, for example, could have abstained from tracking the exact locations of users of its products. Apple also could have required a single sentence disclosure describing its rampant covert tracking of individual users locations to be signed by purchasers rather than or in addition to its fifteen-thousand-

word, sixty-plus page privacy Terms and Conditions. 161. This cause of action is brought by Plaintiff William Devito pursuant to New

York s deceptive business practices laws. See N.Y. Exec. Law 63(12), N.Y. Gen. Bus. Law 349 et seq. 162. New York prohibits [d]eceptive acts or practices in the conduct of any

business, trade or commerce . N.Y. Gen. Bus. Law 349(a). 163. Apple s act of tracking its users was consumer-oriented because it preys on

Apple s own purchasers, as it preyed on Plaintiffs. See Stutman v. Chemical Bank, 731 N.E.2d 608, 611 (N.Y. 2000). 164. Apple s act of tracking its users is misleading in a material way because

Apple fails to disclose, or even hint at, the full extent of its user location tracking in the Apple privacy policy terms and conditions. Apple s acts have a broad impact on consumers at large because Apple s inadequate disclosures, coupled with its unlawful tracking, storing

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and transmitting of user location data, continue to impact prospective purchasers. 165. Plaintiffs and U.S. Class members have suffered injury as a result of Apple s

deceptive acts and omissions because Plaintiffs would not have bought Apple devices had they known that they would be tracked. 166. Plaintiffs have suffered injury as a direct and proximate result of Apple s

deceptive acts, practices and omissions. Injury includes Plaintiffs purchases of their Apple devices. Actual injury to Plaintiffs also includes the collection of their private location information and the continued existence of databases of that same information that are unencrypted and accessible to the public. 167. Apple willfully and knowingly violated N.Y. Gen. Bus. Law 349(a) and is databases

therefore subject to three times the actual damages suffered by Plaintiffs and the U.S. Class. 168. Apple deceived Plaintiffs and consumers, and treated them unfairly by

tracking their movements as described above, and violated the Acts of each state by omitting from its privacy policy the full extent of its tracking: a. b. c. d. Alabama s Deceptive Trade Practices Act declares deceptive practices unlawful. Ala. Code 8-19-1 et seq.; Alaska s Unfair Trade Practices and Consumer Protection Act. Alaska Stat. 44.50.471 et seq.; Arizona s Consumer Fraud Act. Ariz. Rev. Stat. 44-1521 et seq.; Arkansas s Deceptive Trade Practices Act prohibits false, or deceptive acts or practices in business, commerce, or trade. Ark. Code 4-88-101 et seq.; California s Consumer Legal Remedies Act, and also the Unfair Competition Law. Cal Civ. Code 1750 et seq., and Cal. Bus. & Prof. Code 17200 et seq., respectively; Colorado s Consumer Protection Act. Colo. Rev. Stat. 6-1-101 et 34

e.

f.

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seq.; g. h. Connecticut s Unfair Trade Practices Act. Conn. Gen. Stat. 42110a et seq.; Delaware s Consumer Fraud Act, and also its Uniform Deceptive Trade Practices Act. Del. Code, Title 6 2511-2571, 2580-2584, and Title 6 2531-2536, respectively; District of Columbia s Act. D.C. Code 28-3901 et seq.; Florida s Deceptive and Unfair Trade Practices Act. Fla. Stat. 501.201 et seq.; Georgia s Uniform Deceptive Trade Practices Act, and also the Fair Business Practices Act. Ga. Code 10-1-370 et seq., and 10-1390 et seq.; Hawaii s Uniform Deceptive Trade Practices Act. Haw. Rev. Stat. 480-24 et seq., 484A-1 et seq.; Idaho s Consumer Protection Act. Idaho Code 48-601 et seq.; Illinois s Consumer Fraud and Deceptive Business Practices Act, and also its Uniform Deceptive Trade Practices Act. 815 Ill. Comp. Stat. 505/1 et seq., and 815 Ill. Comp. Stat. 510/1 et seq.; Indiana s Deceptive Consumer Sales Act. Ind. Code 24-5-0.5-1 et seq.; Iowa s Act. Iowa Code 714.16 et seq.; Kansas s Consumer Protection Act. Kan. Stat. 50-623 et seq., 50676 et seq.; Louisiana s Unfair Trade Practices and Consumer Protection Law. La. Rev. Stat. 51:1401 et seq.; Maine s Unfair Trade Practices Act, and also its Uniform Deceptive Trade Practices Act. Me. Rev. Stat., Title 5 205-A et seq., and Title 10 1211 et seq., respectively; Maryland s Consumer Protection Act. Md. Code Com. Law 13101 et seq.; Massachusetts s Consumer Protection Act. Mass. Gen. Laws ch.

i. j. k.

l. m. n.

o. p. q. r. s.

t. u.

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93A 1 et seq.; v. w. Michigan s Consumer Protection Act. 445.901 et seq.; Mich. Comp. Laws

Minnesota s Uniform Trade Practices Act, and its False Statement in Advertising Act, and also its Prevention of Consumer Fraud Act. Minn. Stat. 8.31, 325D.43 et seq., and 325F.68 et seq.; Mississippi s Consumer Protection Act. Miss. Code 75-24-1 et seq.; Missouri s Merchandising Practices Act. Mo. Rev. Stat. 407.010 et seq.; Montana s Unfair Trade Practices and Consumer Protection Act. Mont. Code 30-14-101 et seq.; Nebraska s Consumer Protection Act, and also its Uniform Deceptive Trade Practices Act. Neb. Rev. Stat. 59-1601 et seq., and 87-301 et seq.; Nevada s Trade Regulation and Practices Act. Nev. Rev. Stat. 598.0903 et seq., and 41.6000; New Hampshire s Consumer Protection Act. N.H. Rev. Stat. 358-A:1 et seq.; New Jersey s Consumer Fraud Act. N.J. Stat. 56:8-1 et seq.; New Mexico s Unfair Practices Act. N.M. Stat. 57-12-1 et seq.; New York s Act. N.Y. Exec. Law 63(12), N.Y. Gen. Bus. Law 349 et seq.; North Carolina s Act. N.C. Gen. Stat. 75-1.1 et seq.; North Dakota s Consumer Fraud Act. N.D. Cent. Code 51-15-01 et seq.; Ohio s Consumer Sales Practices Act, and also its Deceptive Trade Practices Act. Ohio Rev. Code 1345.01 et seq., and 4165.01 et seq.; Oklahoma s Consumer Protection Act, and also its Deceptive Trade Practices Act. Okla. Stat., Title 15 751 et seq., Title 78 51 et

x. y. z. aa.

bb. cc. dd. ee. ff. gg. hh. ii.

jj.

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seq., respectively; kk. ll. Oregon s Unlawful Trade Practices Law. Or. Rev. Stat. 646.605 et seq.; Pennsylvania s Unfair Trade Practices and Consumer Protection Law. 73 Pa. Stat. 201-1 et seq.;

mm. Rhode Island s Unfair Trade Practices and Consumer Protection Act. R.I. Gen Laws 6-13.1-1 et seq.; nn. oo. pp. qq. rr. South Carolina s Unfair Trade Practices Act. S.C. Code 39-5-10 et seq.; South Dakota s Deceptive Trade Practices and Consumer Protection Law. S.D. Cod. Laws 37-24-1 et seq.; Tennessee s Consumer Protection Act. Tenn. Code 47-18-101 et seq.; Texas s Deceptive Trade Practices Consumer Protection Act. Tex. Bus. & Com. Code 17.41 et seq.; Utah s Unfair Practices Act, and its Consumer Sales Practices Act, and also its Truth in Advertising Act. Utah Code 13-2-1 et seq., 13-5-1 et seq., and 13-11-1 et seq., and also 13-11a-1 et seq., respectively; Vermont s Consumer Fraud Act. Vt. Stat., Title 9 2451 et seq.; Virginia s Consumer Protection Act. Va. Code 59.1-196 et seq.; Washington s Consumer Protection Act. 19.86.010 et seq.; Wash. Rev. Code

ss. tt. uu. vv.

West Virginia s Consumer Credit and Protection Act. W. Va. Code 46A-6-101 et seq.;

ww. Wisconsin s Deceptive Trade Practices Act. Wis. Stat. 100.18 et seq.; xx. yy. Wyoming s Consumer Protection Act. Wyo. Stat. 40-12-101 et seq.; and the equivalent and applicable laws in the other remaining U.S. territories.

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169.

Apple is liable for attorney s fees and reasonable costs pursuant to Fla. Stat.

501.2105, and the comparable statutes of the other states, as described above, if Plaintiffs and U.S. Class members prevail. 170. 171. Plaintiffs also seek punitive damages. Plaintiffs seek a declaratory judgment under the relevant statutes, including

Fla. Stat. 501.2105. 172. Violations of the relevant computer laws, both federal and state, serve as

additional predicates for violations of these UDAP laws. 173. Plaintiffs and the U.S. Class reserve the right to allege other violations of law

which constitute other unlawful business acts or practices. Such conduct is ongoing and continues to this date. COUNT X (U.S. Class Only: Fraudulent, Intentional Misrepresentation) 174. Plaintiffs re-allege and incorporate by reference the allegations contained in

the paragraphs above, and those that come after as if fully set forth here. 175. Apple represented to Plaintiffs and U.S. Class members that it would not

collect information about their every movement and location, and omitted disclosing otherwise to Plaintiffs. See Essex Ins. Co. v Universal Entertainment & Skating Center, Inc., 665 So. 2d 360 (Fla. 5th DCA 1995) (discussing fraud generally). 176. Apple not only knew that its privacy terms and conditions policy was, and

continues to be, false, deceptive and untrue, by omitting that Apple will track users, but Apple also intended for Plaintiffs and U.S. Class members to rely on its deceptive or omitted statements.

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177.

Apple s fraud is comprised both by the omissions of proper disclosures to its

users and by its illegal tracking of their movements. 178. 179. Plaintiffs and U.S. Class members did not know about Apple s omissions. Plaintiffs and U.S. Class members did not know that Apple has been tracking

their movements. 180. Plaintiffs and U.S. Class members, acting as ordinary consumers, reasonably

relied on Apple s representations. Plaintiffs had a right to rely on Apple s representations. Plaintiffs and U.S. Class members reliance on Apple s omissions was a substantial factor in causing their harm. Apple s tracking of users was and is material, and Plaintiffs and U.S. Class members reasonably believed that their every movements would not be tracked. 181. Plaintiffs and U.S. Class members were damaged in the amount of money

required to purchase Apple s products, because they would have purchased other products had they been aware of the material fact that Apple s Devices track their users locations. 182. 183. Plaintiffs and the U.S. Class seek punitive damages from Apple. Apple had and continues to have a duty of good faith, which implicitly

includes a duty not to deceive consumers, and also not to conduct this sort of covert digital surveillance on consumers. And they certainly have a duty not to stalk consumers or to facilitate others doing that. But that is exactly what Apple has done and continues to do. 184. To remedy Apple s intentional omission to consumers, and omission of

clarifying statements during the sales process, Plaintiffs and U.S. Class members seek to rescind the contracts, and thereby disgorge all monies paid to Apple for these products. Plaintiffs also seek all other damages sought in this complaint.

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COUNT XI (U.S. Class Only: Negligent Misrepresentation) 185. Plaintiffs re-allege and incorporate by reference the allegations contained in

the paragraphs above, and those that come after as if fully set forth here. 186. Apple omitted a material fact that purchasers would be tracked at all times

during its sale of iPhones, iPads and other Devices to consumers, and during its installation of the iOS 4 operating system on older Devices through what it told users were software upgrades. 187. Apple was negligent in making the omissions because it should have known

that whether their every movements would be tracked, recorded and stored for later use was material to consumers. 188. Apple, in making that omission intended, or expected, that Plaintiffs and U.S.

Class members would rely on the omission. 189. Plaintiffs justifiably relied on Apple s omissions about its tracking of

purchasers, and would not have purchased Apple s products but for the omissions. 190. Indeed, Apple has recently stated that its collection of individual location data

was an unintentional bug in its operating systems. If it truly was a bug, then Plaintiffs being tracked was the result of Apple s negligence, in which case Apple s failure to tell Plaintiffs that they would be tracked was likewise negligent. Also, if true, then Plaintiffs could not have possibly authorized Apple to collect their individual location data because even Apple, the author of its own privacy Terms and Conditions, did not envision the individual location data tracking, storage or transmittal to Apple. 191. Plaintiffs were damaged in amounts equal to the prices they paid for Apple

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Devices and products. 192. Apple s omissions were material and directly and proximately caused

ordinary consumers acting reasonably, Plaintiffs and U.S. Class members included, to buy the iPhone and iPad products, and other Devices. Without Apple s omissions of the material fact that users location data would be collected, the products would not have been purchased, and Plaintiffs would not have suffered damages. 193. Plaintiffs seek punitive damages from Apple. COUNT XII (U.S. Class Only: Unjust Enrichment, Money Had and Received) 194. Plaintiffs re-allege and incorporate by reference the allegations contained in

the paragraphs above, and those that come after as if fully set forth here. 195. Unjust enrichment results from a transfer that is ineffective to conclusively

alter ownership rights.21 Here, Apple s omissions made Plaintiffs and U.S. Class members believe that a term material to the contract was different than it actually was. Apple intended to track its users, storing their location data and transferring that data back to Apple to build a database so that it could sell billions of dollars in location-based advertisements. Plaintiffs did not agree to be Apple s mules Apple. Morally and ethically they did not agree to be tracked, nor to collect data for Apple has gained a benefit for

and therefore, in equity

which it has not exchanged consideration. Apple promised products capable of certain tasks, but instead, like the Trojan Horse, delivered products to spy on Plaintiffs and U.S. Class members and to sell their personal location information at a future date. This constitutes at least a partial failure of consideration.
21

See Restatement, Third, of Restitution and Unjust Enrichment, 1, comment b (Discussion Draft 2000).

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196.

Apple, through the omission of its true intentions, cultivated in consumers a

mistake of fact that would not have existed but for Defendant s omissions. 197. Because of Apple s omissions, Plaintiffs and U.S. Class members conveyed a

benefit to Apple by purchasing its products and then having their subsequent movements tracked, stored and transmitted to Apple. Apple appreciated the benefit conferred on it by Plaintiffs through these transactions because it was enriched in the amount Plaintiffs paid for the Devices, and also in the amounts received by Apple from selling iAds based on access to U.S. Class members individual location data. 198. Apple was enriched through its unlawful acquisition of user location data

from Plaintiffs and the U.S. Class, whether or not Apple has yet realized pecuniary proceeds from the sale of this information in iAds. 199. Plaintiffs have no adequate remedy at law due to the difficulty of quantifying

losses and damages caused by being tracked, and having their location information stored or downloaded on an unencrypted database. Apple is responsible for unknown increases in disclosures, or risks of such disclosures, about private location information of Plaintiffs, their families, U.S. Class members and future purchasers, as a direct consequence of near constant recording of their locations. Because of Apple s actions, a user s [l]ocation is available to

anyone with certain commercially available software, says Apple. Apple s Letter at 6. 200. Plaintiffs and U.S. Class members lacked the requisite intent to form a

contract for the products that they actually received. There can be no valid contract without intent. 201. Indeed, Apple has recently stated that its collection of individual location data

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was an unintentional bug in its operating systems. If it truly was a bug, then Plaintiffs could not have possibly authorized Apple to collect their individual location data because even Apple, the author of its own privacy Terms and Conditions, did not envision the individual location data tracking, storage and transmittal to Apple. 202. Products supplied were inadequate consideration for the monies paid and the

value of Plaintiffs individual location data created, stored and misappropriated by Apple. These contracts fail for want of consideration. 203. Apple accepted and retained money paid to it by Plaintiffs, and Plaintiffs

individual location data. The affirmative, knowing and intentional misrepresentations and omissions of Apple, which Plaintiffs reasonably relied upon, in combination with Apple s blatant breach of Plaintiffs privacy, constitute circumstances that make it inequitable for Apple to retain Plaintiffs money or the benefit of Plaintiffs location data. COUNT XIII (U.S. Class Only: Negligence) 204. Plaintiffs re-allege and incorporate by reference the allegations contained in

the paragraphs above, and those that come after as if fully set forth here. 205. Apple had a duty to Plaintiffs not to track, collect, or transmit their individual

location data because Apple lacked authorization from Plaintiffs to undertake those activities. 206. Apple breached this duty to Plaintiffs by tracking, collecting, and transmitting

their individual location data. 207. Indeed, Apple has recently stated that its collection of individual location data

was an unintentional bug in its operating systems. If it truly was a bug, then Plaintiffs being tracked was the result of Apple s negligence. Also, if true, then Plaintiffs could not

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have possibly authorized Apple to collect their individual location data because even Apple, the author of its own privacy Terms and Conditions, did not envision the individual location data tracking. 208. Apple s breach of its duty to Plaintiffs directly and proximately caused the

Plaintiffs damage in the forms of: a. Exposing their location data in an unencrypted database; b. Shortening the battery life of their Devices by drawing power for the unauthorized creation, accumulation and transmittal of individual location data through communication with cell towers, wireless hotspots and GPS infrastructure; c. Requiring more frequent recharges of Device batteries and the expenses associated therewith; d. Reducing the storage capability of their devices by covertly allocating limited device resources to create and store a database of individual user location information; e. Creating longer processing times for legitimate Device uses because of resources drawn on by Apple s location data activities; f. Causing an increase in data transfer expenses for users with limited data packages. 209. Further, Apple is subject to a heightened standard of care towards its users if it

is a common carrier by virtue of its transporting information initiated by, and sent to, users of its iPhones, iPads, and other Devices.

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COUNT XIV (U.S. Class Only: Invasion of Privacy) 210. Plaintiffs re-allege and incorporate by reference the allegations contained in

the paragraphs above, and those that come after as if fully set forth here. 211. Google intruded on U.S. Plaintiffs affairs or seclusion by prying into

Plaintiff s individual location several times a minute, sharing that information with third parties, and sending targeted ads to Plaintiffs on his smartphone at his precise location. 212. This obtrusion is objectionable to Plaintiffs and would be objectionable to a

reasonable person. Plaintiffs location, UDID and acts and transactions on their Devices are within their own private domain and are private. 213. Apples acts and omissions have directly and proximately damaged Plaintiffs

as described throughout this complaint. PRAYER FOR RELIEF WHEREFORE Plaintiffs pray for judgment against Apple as follows: A. For an order certifying the U.S. Class and the International Class, as defined herein, appointing undersigned counsel as Class Counsel for both Classes, approving U.S. Plaintiffs as U.S. Class representatives, approving all Plaintiffs as International Class representatives, and requiring that notice be provided to the Classes at Apple s expense, pursuant to Fed. R. Civ. P. 23; B. For declaratory and injunctive relief, including enjoining Apple from continuing to omit its true intentions about tracking purchasers of its products, and requiring Apple to stop tracking its products users;

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C.

For judgment on behalf of the Classes as defined herein for the amount of any payments made to Apple with interest thereon;

D. E. F.

For exemplary, treble or punitive damages; For reasonable attorneys fees and costs; and For such other and further relief as this Court deems equitable or just under the circumstances of Apple s ongoing activities and omissions. DEMAND FOR JURY TRIAL

Plaintiffs, on behalf of themselves and all others similarly situated, hereby demand a trial by jury on all issues so triable against Apple. Respectfully submitted, s/ Aaron Mayer Aaron C. Mayer FBN: 0076983 MAYER LAW GROUP, LLC 18 Carolina St., Suite B Charleston, SC 29403 T: (843) 376-4929 F: (888) 446-3963 aaron@mayerlawgroup.com Trial Counsel for Plaintiffs

2011 Aaron Mayer

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