Illinois resident claims Apple 'stalking' in class action over iOS 4

By Steve Korris | May 5, 2011

EAST ST. LOUIS – Nine days after British Broadcasting Corporation reported that Apple Inc. could stalk owners of iPhones with the iOS 4 operating system, Illinois resident Cynthia O'Flaherty proposed a statewide class action against Apple in U.S. district court.

Her lawyer, Christian Montroy of East St. Louis, sued Apple on April 29, seeking damages under computer tampering and consumer protection laws of Illinois.

"The accessibility of unencrypted information collected by Apple places users at serious risk of privacy invasions, including stalking," Montroy wrote.

The same sentence appeared in a nationwide class action complaint that lawyer Aaron Mayer of Charleston, S.C., filed at federal court in Tampa, Fla., on April 22.

BBC had broken the story on April 20.

Mayer, representing clients from Florida and New York, sought damages for privacy invasion and an injunction requiring Apple to disable its tracking capabilities.

He wrote that 59 million people have iPhones, and many of them run the iOS 4 system.

He proposed a separate class for purchasers of the 3G version of iPad.

"Apple's iPhones and iPad 3Gs are carried with users to essentially every location they travel to, making the information collected by Apple highly personal; indeed, in many instances it may be information to which employers and spouses are not privy," Mayer wrote.

"Plaintiffs and proposed class members were harmed by Apple's accrual of personal location, movement and travel histories 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 a court ordered warrant would ordinarily be required."

A week later, both sentences appeared in Montroy's complaint.

He identified O'Flaherty as a resident of the Southern District of Illinois.

He wrote that Apple's terms of service didn't disclose that it comprehensively tracked

"Apple collected the private location information covertly, surreptitiously and in violation of law," Montroy wrote.

He wrote that "secretly gathered private information may be subpoenaed and become public in the course of litigation, including divorce proceedings."

"Plaintiff and her proposed classes face the risk of their private location information being obtained by malicious third parties and made public, for example, in the course of litigation," he wrote.

He wrote that Illinois computer tampering law provides for civil and criminal actions.

"Violation of this law is a class four felony for the first offense and a class three felony for the second or subsequent offense," he wrote.

Though he described drastic damage, he argued for a class action because "the amount of damages suffered individually by each member of the class is so small as to make suit for its recovery by each individual member of the class economically unfeasible."

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