McKeen v. Carrier IQ, Inc. et al

Filing 1

COMPLAINT against All Defendants ( Filing fee $350 receipt number 0205-2327280.), filed by Ryan McKeen. (Attachments: # 1 Civil Cover Sheet)(Van Dyke, Peter)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RYAN MCKEEN, on behalf of himself
and all others similarly situated

CIVIL NO.: _________

Plaintiff,
v.
CARRIER IQ, INC.; SAMSUNG
ELECTRONICS AMERICA, INC.;
and SAMSUNG
TELECOMMUNICATIONS
AMERICA, LLC.
Defendants.

DECEMBER 6, 2011

COMPLAINT

COMES NOW Plaintiff, individually, and on behalf of all others similarly situated, by
and through his undersigned counsel, on information and belief, and for his Complaint against
Defendants

Carrier

IQ,

Inc.,

Samsung

Electronics

America,

Inc.,

and

Samsung

Telecommunications America, LLC, states as follows:
1.

Defendants have unlawfully intercepted private electronic communications

emanating from private mobile phones, handsets and smart phones.

This practice violates

Federal Law.
PARTIES, JURISDICTION AND VENUE
2.

Ryan McKeen is a natural person and citizen and resident of the State of

Connecticut.
3.

All references to “Plaintiff” throughout this Complaint are made on behalf of the

named Plaintiff and the proposed plaintiff class(es), and vice versa.
4.

The amount in controversy in this action, as defined by 28 U.S.C. § 1332(d)(6),

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exceeds $5,000,000 exclusive of costs and interest.
5.

Defendant, Carrier IQ, Inc. (hereinafter referred to as “CIQ”) is a citizen of

California as defined by 28 U.S.C. § 1332(c) with its principal place of business in California.
6.

Defendant Samsung Electronics America, Inc. is a citizen of New Jersey as

defined by 28 U.S.C. § 1332(c) with its principal place of business in New Jersey.
7.

Defendant Samsung Telecommunications America, LLC is a citizen of Texas as

defined by 28 U.S.C. § 1332(c) with its principal place of business in Texas (Defendants
Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC
hereinafter collectively referred to as “Samsung”).
8.

Defendants are residents of the District of Connecticut as they have ongoing and

systematic contacts with residents of the District of Connecticut. Defendants have, at all material
times, conducted business in the District of Connecticut. Moreover, Defendants have sufficient
minimum contacts with the State of Connecticut such that the assumption of jurisdiction will not
offend traditional notions of fair play and substantial justice.
9.

This Court has subject matter jurisdiction over this action and Defendants

pursuant to 28 U.S.C. § 1331 because this action arises under federal statutes, namely the
Federal Wiretap Act, 18 U.S.C. § 2511 (the “Wiretap Act”).
10.

Venue is proper in this District because all Defendants conduct business in this

District.
11.

When reference in this Complaint is made to any act or omission of Defendants, it

should be deemed to mean that the officers, directors, agents, employees, or representatives of
Defendants committed or authorized such act or omission, or failed to adequately supervise or
properly control or direct their employees while engaged in the management, direction,

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operation, or control of the affairs of Defendants, and did so while acting within the scope of
their employment or agency.
STATEMENT OF FACTS
12.

Defendant, CIQ is the leading provider of mobile services intelligence solutions to

the wireless industry.
13.

Defendant, CIQ claims on their website “As the only embedded analytics

company to support millions of devices simultaneously, we give wireless carriers and handset
manufacturers unprecedented insight into their customers mobile experience.”
14.

Defendant, CIQ uses software in mobile phones to measure performance and user

experience with no visible notice or impact to the user.
15.

Defendant, CIQ’s data processing center collects the data for near real-time

monitoring and intelligence.
16.

Defendant, CIQ is the only company in the industry embedding diagnostic

software in millions of mobile phones, having done so in over 130 million phones globally.
17.

Defendant CIQ states on their website “Identify exactly how your customers

interact with services and which ones they use.

See which content they consume, EVEN

OFFLINE “ (caps added).
18.

Defendant CIQ further states on their website that their software answers business

critical questions including “How do users respond to mobile advertising”.
19.

Defendant CIQ’s website further states that their software features include “View

application and device feature usage, such as camera, music, messaging, browser and TV”.
20.

Defendant CIQ further states that their services give “uniquely powerful insight

into mobile service quality and USER BEHAVIOR” (caps added), allowing the customer to

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“identify new business opportunities”.
21.

Defendant CIQ further states that their software “uses data directly from the

mobile phone itself to give a precise view of how users interact with both their phones and the
services delivered through them, EVEN IF THE PHONE IS NOT COMMUNICATING WITH
THE NETWORK….

Identify exactly how your customers interact with services and which

ones they use. SEE WHICH CONTENT THEY CONSUME, EVEN OFFLINE” (caps added).
22.

Privacy concerns surrounding Defendant CIQ initially arose after Trevor Eckhart,

a security researcher, posted a video which seemingly demonstrated Defendant CIQ’s keystroke
logging, even offline.
23.

Defendant CIQ s patent application #20110106942 contains claims regarding the

collection of keystroke data, describing their product as a “method of collecting data…wherein
the data relates to an end user’s interaction with the device…wherein the interaction with the
device comprises the end user’s pressing of keys on the device”.
24.

A representative of Defendant CIQ has been quoted in response to the privacy

concerns as follows:
Andrew Coward-Chief marketing officer
“We’re as surprised as anybody to see all that information flowing. It raises a lot of
questions for the industry-and not (only) for Carrier IQ”. CARRIER IQ: WE’RE AS
SURPRISED AS YOU. CNNMoney.com 12/02/11
“We do recognize the power and value of this data. We’re very aware that this
information is sensitive. It’s a treasure trove….We’re seeing URLS and we can capture
that information”.
CARRIER IQ ADMITS HOLDING TREASURE TROVE OF
CONSUMER DATA, BUT NOT KEYSTROKES: Wired.com 12/02/2011
In an interview with Wired.com said “probably yes” when asked whether Carrier IQ
could read mobile users’ text messages. CRITICS LINE UP TO BASH MAKER OF
SECRET PHONE-MONITORING SOFTWARE: Wired.com 12/01/11
25.

Defendant CIQ captures and records every keystroke entered on the mobile

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device, as well as location and other data.
26.

Defendant Samsung produces mobile phones and handsets, including “Android”

smart phones.
27.

The CIQ software is embedded in Samsung Android phones.

28.

The information collected by Defendant CIQ is transmitted to various service

providers, including Sprint, AT&T and T-Mobile.
29.
network.

Plaintiff, Ryan McKeen owns a Samsung Android phone using the Sprint
At all relevant times Plaintiff’s cell phone was used to electronically send over

plaintiff’s cell phone network various types of private data. This data was not readily accessible
to the general public. Plaintiff did not know that Defendants were surreptitiously monitoring and
collecting this data, nor did Plaintiff give them permission to do so.
30.

Defendants intercepted, recorded and collected information concerning the

substance, purport, or meaning of the electronic communications transmitted without the
authorization of the parties to those communications.
31.

During all times relevant herein, Plaintiff used and maintained a cellular phone on

the Sprint wireless network.
32.

Plaintiff and Class Members, as defined below, were unaware of Defendants’

wrongful conduct, and unable to discover it until December 2011, as Defendants conduct by
nature was secret and concealed.
CLASS ACTION ALLEGATIONS
33.

This action is brought as a class action by Plaintiff on behalf of himself and on

behalf of all those similarly situated pursuant to Rule 23(a) and 23(b)(1), (2), and (3) of the
Federal Rules of Civil Procedure. The proposed class is defined as follows:

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All United States residents who operate a cellular phone device
manufactured by Samsung Electronics America, Inc. and/or
Samsung Telecommunications America, LLC, and from which
Carrier IQ, Inc. collected electronic communications (the “Class”
or “Class Members”).
Specifically excluded from the class are: any Judge conducting
proceedings in this action and their parents, spouses and children
as well as any other member of their family residing in the judge’s
household; counsel of record in this action; the legal
representatives, heirs, successors and assigns of any excluded
person.
34.

The exact number of the members of the class (or sub-classes) is not presently

known, but is so numerous that joinder of individual members in this action is impracticable.
The exact number of the members of the class (or sub-classes) can only be ascertained through
discovery, because such information is in the exclusive control of Defendants. However, based
on the nature of the activities alleged herein, Plaintiff believes that the members of the class (or
sub-classes) number in the millions and are geographically dispersed throughout the United
States. The addresses of the members of the class (or sub-classes) are readily obtainable from
Defendants and their agents and on information and belief are maintained in the computer
database of Defendants and are easily retrievable.
35.

Plaintiff will fairly and adequately protect the interests of the class (or sub-

classes) and has retained counsel that are experienced and capable in class action litigation.
Plaintiff understands and appreciates his duties to the class (or sub-classes) under Fed. R. Civ. P.
23 and are committed to vigorously protecting the rights of absent members of the class (or subclasses).
36.

Plaintiff is asserting claims that are typical of the claims of each member of the

class (or sub-classes) they seek to represent, in that the claims of all members of the class (or
sub-classes), including Plaintiff, depend upon a showing that the Defendants violated federal

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law. All claims alleged on behalf of the class (or sub-classes) flow from this conduct as well.
Further, there is no conflict between Plaintiff and other members of the class (or sub-classes)
with respect to this action.
37.

There is a well-defined community of interest in the questions of law and fact

involved affecting the parties to be represented.

Questions of law and fact arising out of

Defendants’ conduct are common to all members of the class (or sub-classes), and such common
issues of law and act predominate over any questions affecting only individual members of the
class (or sub-classes).
38.

Common issues of law and fact include, but are not limited to, the following:
a.

Whether the data collected from Plaintiff’s cellular phone devices are
electronic communications protected by the Federal Wiretap Act;

b.

Whether Defendants’ interception of data collected from Plaintiff’s device
was intentional within the meaning of the Federal Wiretap Act;

c.

The proper measure of damages under the Federal Wiretap Act;

39.

The relief sought is common to the entirety of the class (or sub-classes).

40.

Defendants have acted on grounds generally applicable to the class (or sub-

classes), thereby making final injunctive relief or corresponding injunctive relief appropriate
with respect to the class (or sub-classes) as a whole.
41.

This action is properly maintained as a class action in that the prosecution of

separate actions by individual members would create a risk of adjudication with respect to
individual members which would establish incompatible standards of conduct for the
Defendants.
42.

This action is properly maintained as a class action in that the prosecution of

separate actions by individual members of the class (or sub-classes) would create a risk of

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adjudications with respect to individual members of each class (or sub-classes) which would, as
a practical matter, be dispositive of the interests of the other members not parties to the
adjudication, or would substantially impair or impede their ability to protect their interests.
43.

A class action is superior to other available methods for the fair and efficient

adjudication of the claims asserted herein given that, among other things:
(i)

(ii)

the size of the individual damage claims of most members of the
class (or sub-classes) is too small to make individual litigation an
economically viable alternative, such that few members of the
class (or sub-classes) have any interest in individually controlling
the prosecution of a separate action;

(iii)

without the representation provided by Plaintiff herein, few, if any,
members of the class (or sub-classes) will receive legal
representation or redress for their injuries;

(iv)

class treatment is required for optimal deterrence;

(v)

despite the relatively small size of the claims of many individual
members of the class (or sub-classes), their aggregate volume
coupled with the economies of scale inherent in litigating similar
claims on a common basis, will enable this case to be litigated as a
class action on a cost effective basis, especially when compared
with respective individual litigation;

(vi)

no unusual difficulties are likely to be encountered in the
management of this class action;

(vii)

44.

significant economies of time, effort, and expense will inure to the
benefit of the Court and the parties in litigating the common issues
on a class-wide instead of a repetitive individual basis.

plaintiff and members of the class (or sub-classes) have all suffered
irreparable harm and damages as a result of Defendants’ unlawful
and wrongful conduct;

Concentrating this litigation in one forum would aid judicial economy and

efficiency, promote parity among the claims of the individual members of the class (or subclasses), and result in judicial consistency.

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COUNT I
45.

Plaintiff incorporates the allegations contained in Paragraphs 1 through 44 as if

fully set out herein.
46.

The Omnibus Crime Control and Safe Streets Act of 1968, also known as the

Federal Wiretap Act, 18 U.S.C. § 2510 et seq., provides:
[A]ny person who-- … intentionally intercepts, endeavors to
intercept, … any wire, oral, or electronic communication; … shall
be punished as provided in subsection (4) or shall be subject to
suit as provided in subsection (5).
18 U.S.C.A. § 2511.
47.

At all times relevant hereto, Plaintiff, and Class Members, were persons entitled

to the protection of 18 U.S.C. § 2511 as they were individuals who were party to electronic
communications.
48.

On information and belief, Defendants intercepted information concerning the

substance, purport, or meaning of Plaintiff’s electronic communications on more than one
occasion.
49.

The Federal Wiretap Act also provides that:
[A]ny person whose wire, oral, or electronic communication is
intercepted, disclosed, or intentionally used in violation of this
chapter may in a civil action recover from the person or entity …
which engaged in that violation such relief as may be appropriate.
In an action under this section, appropriate relief includes -- … (2)
damages under subsection (c) and punitive damages in appropriate
cases; and (3) a reasonable attorney’s fee and other litigation costs
reasonably incurred … [T]he court may assess as damages
whichever is the greater of – (A) the sum of the actual damages
suffered by the plaintiff and any profits made by the violator as a
result of the violation; or (B) statutory damages of whichever is the
greater of $100 a day for each violation or $10,000.

18 U.S.C. § 2520

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WHEREFORE, Plaintiff and the Class pray that the Court enter judgment in their favor
and against Defendants as follows:
a.

Ordering that this action be maintained as a class action pursuant to Rule
23 of the Federal Rules of Civil Procedure, and

b.

Declaring that Defendants collection of electronic communications
violates 18 U.S.C. §2511; and

c.

Awarding Plaintiff and Class Members statutory damages pursuant to 18
U.S.C. § 2520, including punitive damages, costs of suit, and attorneys’
fees; and

d.

Injunctive and declaratory relief as deemed appropriate.
Respectfully submitted
/s/ Peter M. Van Dyke
Peter M. Van Dyke, ct24747
EAGAN, DONOHUE, VAN DYKE & FALSEY, LLP
24 Arapahoe Road
West Hartford, CT 06107
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
RODDY KLEIN & RYAN
Gary Klein
Shennan Kavanagh
Kevin Costello
727 Atlantic Avenue
Boston, MA 02111-2810
Telephone: [phone] ext. 15
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
HOLLAND, GROVES, SCHNELLER
& STOLZE, LLC
Eric D. Holland
Steven J. Stolze
Steven L. Groves
300 N Tucker, Suite 801
St. Louis, Missouri 63101

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Telephone: [phone]
Facsimile: 314.241.5554
Email: [e-mail]
[e-mail]
[e-mail]

BOLEN, ROBINSON & ELLIS, LLP
Jon D. Robinson
Christopher M. Ellis
Shane M. Mendenhall
202 South Franklin Street, 2nd Floor
Decatur, Illinois 62523
Telephone: [phone]
Facsimile: 217.329.0034
Email: [e-mail]
[e-mail]
[e-mail]

LEVIN, FISHBEIN, SEDRAN & BREMAN
Charles Schaffer
510 Walnut Street, Suite 500
Philadelphia, PA 19106-3697
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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