back to article Apple dodges data privacy sueball: Fanbois didn't RTFM*, says judge

A US judge has thrown out an Apple user lawsuit over data privacy, saying that the former fanbois and gurlz had failed to show any evidence that they knew about Apple's privacy policies before they bought their iPhones. Four iDevice users claimed in 2011 that Apple had violated its privacy policy by allowing third-party app …


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  1. Clive Galway

    Ask the Judge what the privacy policy is for her phone...

    I doubt she would know, so why does she expect others to?

    1. JimmyPage Silver badge


      The judge didn't say they should have known what the privacy policy was. She said they had not demonstrated that their decision to buy an iPhone was affected by it.

    2. Anonymous Coward
      Anonymous Coward

      Re: Ask the Judge what the privacy policy is for her phone...

      She probably doesn't know. However that doesn't make it reasonable: if you use a device without reading the conditions of use then that doesn't somehow absolve you of any problems you might have as a result.

    3. Lord Elpuss Silver badge

      Re: Ask the Judge what the privacy policy is for her phone...

      The judge isn't the one bringing a (frivolous) lawsuit...

  2. Jyve

    Wait, Koh again?

    She used to do work for Apple, and keeps finding in Apple's favour? Eh?

    I don't get how she's able to keep getting these cases when there's prior business dealings.

    1. Shrimpling

      Re: Wait, Koh again?

      When did she work for Apple?

      Her career path since graduating from Harvard in 1993 has been working for various Government agencies/deparments in the 90's followed by working for 2 different Law firms between 2000 and 2008, since then she has been a Judge.

      She has also ruled against Apple in some cases she has judged:

    2. Anonymous Coward

      Re: Wait, Koh again?

      No she did work for Apple! They read it on a forum, or a blog, maybe it was in a newspaper, or was it that bloke in the pub/

      1. I ain't Spartacus Gold badge

        Re: Wait, Koh again?

        I can prove she worked for Apple, I saw it online. Here's the link to my source.

        By the power of Wikipedia. I have the power...

        1. I ain't Spartacus Gold badge

          Re: Wait, Koh again?

          Oh dear. Did I need to use a joke alert icon on that post? Or have I upset the Wikipedia or Android fans?

  3. Parax


    "she said the plaintiffs had failed to show that they'd read, seen or heard anything about the company's data policies before they bought their iPhones."

    Because all apple stores have it writ large on the wall. (not sealed in the box, only available after purchase)..

    1. Anonymous Coward
      Anonymous Coward

      Re: Errrr...

      If people are performing their due diligence before signing the contract, then they would go here when researching. As most people don't give a crap until the point where they feel they want something for nothing they don't bother. Any store would also be happy to show you them if you asked, but they also know that people don't usually want to read them, which was the case here. It's not like Apple don't show you them every time you have an update either, or when you first turn on the device. If you reject the T&Cs then you (according to the T&Cs) are allowed to return the device for a full refund...Of course you will find it hard to also cancel the contract unless you are within the cooling off period, but that is not Apples problem.

      1. Parax

        Yes, and if they are not performing due diligence? is that not what this case was about? they were not TOLD they were expected to find it for themselves.. perhaps they want it writ large on the wall, or read and press the agree button to enter the store... its all stupid.

      2. Ian 55

        Re: Errrr...

        The next time I pass an Apple shop, and have some spare time, I will go in and ask for the various T&C to be explained to me - should be a more interesting use of the staff's time than cleaning semen out of latops (thank you, Sasha Baron Cohen) - before going, 'Nah, no-one doing proper due diligence would accept that!'

      3. Ilsa Loving

        Re: Errrr...

        The irony is that if people actually DID do their due dilligence whenever they use ANY companies services, then the economy would probably collapse because everyone would freak out and stop using any services at all.

        Are there any companies that *don't* abuse their power in some way?

  4. DAN*tastik

    I must be doing my bugs wrong

    Every time there's a bug in my code, it creates problems. When Google or Apple users discover 'bugs', they generally end up being features that are actually useful to those companies. Imagine that. I end up with null pointers, they end up with devices that track the users and send location data back to them, or the location and names of Wifi networks. Let's see if I can cock things up a bit more, and manage to find the way to obtain cold fusion with bad SQL.

    1. Anonymous Custard

      Re: I must be doing my bugs wrong

      Well Billionaire Bill seems to have gone from Windows code (and bugs) to funding the search for cures for HIV/malaria/polio (amongst many other things) so there's certainly a precedent.

      1. jof62

        Re: I must be doing my bugs wrong

        I think you will find that that is mainly for tax purposes

    2. VinceH

      Re: I must be doing my bugs wrong

      "Every time there's a bug in my code, it creates problems. When Google or Apple users discover 'bugs', they generally end up being features that are actually useful to those companies. Imagine that."

      I was going to reply saying it's the same for me, and in doing so, I invented the word Gopplesoft to refer collectively to Google, Apple and Microsoft. So instead I'll just put that word out there. Gopplesoft.


      1. I ain't Spartacus Gold badge

        Re: I must be doing my bugs wrong

        Whilst Gopplesoft is nice, and I congratulate you for it, I think I prefer Micrapogle. Because it's ovbious that they like to ogle my crap all the time...

  5. Anonymous Coward
    Anonymous Coward

    As explained in the South Park episode

    The Human CentiPad.

  6. Anonymous Coward
    Anonymous Coward

    AC @ 14:40

    If people performed due diligence, they wouldn't buy the damned iPhone in the first place.

  7. btrower

    Nobody is expected to read it

    Nobody posting here and nobody on the judges or plaintiff's side has any realistic hope of even assembling all the contracts that allegedly bind them, let alone both read them and fully understand their ramifications.

    This whole discussion is bullshit. It is not unreasonable to expect a custodian of your data to protect it. It does not matter what a contract says if the provision is fundamentally unreasonable.

    I am skeptical that this is really a good decision under law. By any reasonable interpretation of common law you can't be bound by all the fine print in a contract like this because it is not really a proper contract. If this actually is a good legal decision that stands up on appeal then the law should be changed.

    The establishment has done one hell of a fine job steering debate to the stupidest of places because they have convinced *almost* everyone that they have no rights and are entitled to nothing. The PATRIOT Act, DHS and the TSA are eloquent testimony to that fact. All three are outrageous insults to the body politic and might well have sparked another revolution a couple of centuries ago.

    1. Anonymous Coward
      Anonymous Coward

      Re: Nobody is expected to read it

      Nobody is expecting everyone to read every piece of documentation but what is expected, and its the same for British law, if you have specific requirements in relation to your purchase the onus is on you to make those requirements known BEFORE you purchase the item.

      If you are then sold an item that doesn't meet those requirements it is mis-selling. The plaintiffs could not prove they made their requirements known and thusly there's no proof that Apple actively mis-sold those iPhones.

    2. Irony Deficient

      “This whole discussion is bullshit.”

      btrower, if this be your true view on the matter, then why contribute to the steaming entirety?

      As JimmyPage noted above, the issue at hand is not the contents of Apple’s privacy policy, but the inability of the plaintiffs to provide proof that their willingness to pay the contemporary purchase price for their iDevices was directly related to whatever Apple’s privacy policy was at the time of purchase — since overpaying was the claimed source of harm to the plaintiffs, and thus would have been the basis for determining damages, had the case been decided in their favor.

      At this point, anyone who purchases electronic devices within the boundaries of the Northern District Court for California and who could have concerns that they paid too much for their device in case of future evidence of misrepresentations in current manufacturer privacy policies, should document the reasons for their purchase (including relevant direct quotations from privacy policies as proof of having read them), save a copy of the appropriate privacy policy/terms and conditions/&c. from the manufacturer’s Web site (preferably suitably highlighted, and with notes-to-self added in the margins), and should record whatever portion of the purchase price was, for you, attributable solely to the privacy policy. For people who purchase such devices anywhere else on Earth, including the remainder of the US, this court decision does not apply to you, so taking these steps would at best be long-shot insurance for you.

    3. Maharg

      Re: Nobody is expected to read it

      Text from the ruling

      “Critically, none of the plaintiffs presents evidence that he or she even saw, let alone read and relied upon, the alleged misrepresentations contained in the Apple Privacy Policies, SLAs [Software License Agreements], or App Store Terms and Conditions, either prior to purchasing his or her iPhone, or at any time thereafter,” [..]

      [..] “Plaintiffs each allude to a vague ‘understanding’ regarding Apple’s privacy policies without providing any evidence whatsoever concerning the basis for this understanding,” the 30-page judgment states. “But a vague ‘understanding’ about Apple’s privacy policies is not enough. To survive summary judgment, plaintiffs are required to set forth ‘specific facts’ in support of standing.” [..]

      [..] But without “some evidence that [plaintiffs] saw one or more of Apple’s alleged misrepresentations, that they actually relied on those misrepresentaions, and that they were harmed thereby,” the plaintiffs have no case,”

      Or in other words, you cant sue a company for breaching an agreement if you dont actully know what is in the agreement and are just ‘guessing’

      1. Anonymous Coward
        Anonymous Coward

        Re: Ridiculous

        Basically what the judge is ruling is that a company can promise whatever they want and not be held to account for it. She is saying it is perfectly reasonable for companies to abuse individuals' private data in whatever way they choose, and no-one is in a position to argue with them unless they have custom contracts put in place. (Can you imagine going into a phone shop and saying "I don't think this term x is reasonable, will you change it for me please"?)

        This is complete bollocks.

        There need to be some penalties enshrined in law, to prevent this rife practice of lying and cheating. Proving actual damages is appropriate in many cases, but when it is a global household name that is deliberately and consistently taking the piss, further recourse is a must .

        It is simply not acceptable for 'reputable' organisations to say one thing and blatantly do something else, especially when those actions are not expected and are viewed as unreasonable by the majority, and especially when they concern personal privacy.

        1. Anonymous Coward
          Anonymous Coward

          Re: Ridiculous


          (Can you imagine going into a phone shop and saying "I don't think this term x is reasonable, will you change it for me please"?)


          I have. I then drove around the corner to one of their competition and transferred my business there.

        2. Irony Deficient

          “This is complete bollocks.”

          Anonymous Coward of 14:07 GMT, no, that is not what the judge ruled. Please read the second paragraph of my reply to btrower above; what the judge ruled is that the plaintiffs were unable to provide proof of their claimed harm (viz the harm of having overpaid for their iDevices, given Apple’s subsequent actions vis-à-vis their privacy policy). Without harm, there is no standing to bring suit over Apple’s action, hence the summary judgment against the plaintiffs. Frankly, the plaintiffs’ legal representatives made a poor choice of harm in their suit; a better-considered approach would not have ended with a summary judgment over the plaintiffs’ standing.

  8. Anonymous Coward
    Anonymous Coward

    Its very difficult to not get the impression that Judge Koh is biased in favor of Apple.

    From my perspective, its only when faced with some of the best known, highest paid, lawyers that anyone has the slightest chance of fairness... and that doesn't seem fair.

    Maybe they could have claimed that Apple's actions were a violation of protections afforded by the 4th amendment.

  9. Grikath

    Wrong choice of words....

    Judge Koh could have Immortalised herself in the eyes of the Intarwebs by stating that they "were holding it wrong."

  10. Anonymous Coward
    Anonymous Coward

    Wonder how much the Apple cheque was to Judge Koh this time?

  11. DiViDeD

    Very Apple Friendly, this Lucy Koh

    Just saying

  12. MrDamage Silver badge

    Due Diligence

    Is a tad hard when most of the 10000+ word EULA's are in double speak legal terms that the average punter would glaze over when they try to read them, and wouldnt be able to afford the lawyers to decipher it for them.

    EULAs should not be more than say, 1500 words, and use plain english (or whatever your local lingo is) to get their point across. If they can't, take em off the market.

    1. Pascal Monett Silver badge

      Re: Due Diligence

      In my opinion EULA's are simply illegal, period.

      When I studied a bit of commercial law, I was told that a Contract is a binding Agreement between Parties. Once agreed to the terms, said terms cannot be changed by any of the Parties without amending the Contract and obtaining a new Agreement from all Parties.

      But the EULA can be (and is often) changed by the company at whim, without waiting for agreement from the consumer (the other Party). Instead, we get notices that "by reading this you agree to the new terms", or some other bullshit to the same effect.

      In other words, consumers have NO POSSIBILITY to NOT agree to the terms, therefor EULAs are not contracts and their legal weight is not even worth the pixels that display them.

      What irks me to no end is that there is no lawyer that has driven a train through that hole yet.

  13. solo

    Thousands or more T&Cs need to be read over lifetime

    I use read hundreds of pages online daily, all from different sites and most of them are first time for me and all of them have their policies. Reading all of the policies and debating in mind to agree or not to, everyday, will cost me 100/24 hours I guess.

    So, I feel, choosing any one of following choices should be good for all:

    1. Since I go everywhere using a search engine, only their privacy (exposure/endorsement/cheating/bug) policies apply

    2. The government decide common agreements for sites of different domains (with 1 exposure/defamation clause for the government's right, according to the ULTIMATE amendment)

    3. Each end user to send his own copy of policy in the HTTP GET header and if the server replies with success, that will imply that the site agrees with the user's policy (and the user may also assume complete right to use all the content of the site at his own will, if mentioned in HIS policy)

    1. Anonymous Coward

      Re: Thousands or more T&Cs need to be read over lifetime

      It's not too late for you to propose that (#3) in the next IETF draft spec.

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