Pacilli et al v. Carrier IQ Inc. et al

Filing 1

CLASS ACTION COMPLAINT filed with Jury Demand against AT & T Inc., Apple Inc., Carrier IQ Inc., HTC America Inc., Motorola Mobility Inc., Samsung Electronics America Inc., Samsung Telecommunications America LLC, Sprint Nextel Corporation, T-Mobile USA Inc. - Magistrate Consent Notice to Pltf. ( Filing fee $ 350, receipt number 0311-984475.) - filed by Amandeep Singh, Saima Mian, Jeffrey Pacilli, Marilyn Robledo. (Attachments: # 1 Civil Cover Sheet)(ksr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

JEFFREY PACILLI, SAIMA MIAN,
AMANDEEP SINGH, and MARILYN
ROBLEDO, individually and on behalf
of all others similarly situated,
Civil Action No. _______________________
Plaintiffs,
Jury Demand
v.
CARRIER IQ, INC., AT&T INC., SPRINT
NEXTEL CORPORATION, T-MOBILE
USA, INC., HTC AMERICA, INC.,
APPLE, INC., SAMSUNG
ELECTRONICS AMERICA, INC.,
SAMSUNG TELECOMMUNICATIONS
AMERICA, LLC, and MOTOROLA
MOBILITY, INC.,

CLASS COMPLAINT FOR:
1. Violation of Federal Wiretap Act,
18 U.S.C. § 2511 AND
2. Violation of Stored Electronic Communication
Act,18 U.S.C. § 2701; AND
3. Violation of Federal Computer Fraud and Abuse
Act, 18 U.S.C. § 1030

Defendants.

CLASS ACTION COMPLAINT

“This is my worst nightmare . . . It is an utterly appalling invasion of privacy with
immense potential for manipulation and privacy theft that requires immediate
federal intervention.”
Stephen Wicker, Cornell University Professor of Electrical and Computer
Engineering, commenting on the Carrier IQ scandal

Plaintiffs Mr. Jeffrey Pacilli, Ms. Saima Mian, Mr. Amandeep Singh, and Ms. Marilyn
Robledo (together, the “Plaintiffs”), on behalf of themselves and all others similarly situated, by
and through their undersigned counsel, upon knowledge as to themselves and otherwise upon
information and belief, allege as follows:

NATURE OF THE ACTION
1.

This is a class action lawsuit arising out the cell phone tracking scandal brought

by, and on behalf of, similarly situated persons who had a wireless contract with at least one of
the Defendant wireless phone carriers – AT&T Inc. (“AT&T”), Sprint Nextel Corporation
(“Sprint”), or T-Mobile USA, Inc. (“T-Mobile”) – and who used at least one cell phone
manufactured and/or distributed by at least one Defendant Manufacturer – Apple, Inc. (“Apple”),
HTC America, Inc. (“HTC”), Samsung Telecommunications America, LLC or Samsung
Electronics America, Inc. (together, “Samsung”) or Motorola Mobility, Inc. (“Motorola”) –
which contained “rootkit” software designed and sold by Defendant Carrier IQ, Inc. (“Carrier
IQ”) and whose privacy was violated.
2.

Carrier IQ sells rootkit software designed to help wireless service providers and

device makers identify and diagnose service and quality-related problems such as dropped calls
and battery drain. The software is currently installed on 150 million phones worldwide.
3.

Last month, Connecticut technology blogger Trevor Eckhart reported that the

Carrier IQ software does more than advertised. The software is surreptitiously logging and
transmitting extraordinarily sensitive information from consumers’ phones to the mobile phone
carriers, without the knowledge or consent of the users, in violation of federal privacy laws.
4.

On November 30, 2011, The United States Senate Committee on the Judiciary

wrote a letter to Carrier IQ, expressing deep concern about the scandal. Demanding immediate
responses to 11 questions, the letter says that the actions alleged “may violate federal privacy
laws, including the Electronic Communications Privacy Act and the Computer Fraud and Abuse
Act. This is a potentially very serious matter.” (emphasis added).
5.

Defendants’ willful and knowing actions violated the Federal Wiretap Act, the

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Stored Electronic Communication Act, and the Federal Computer Fraud and Abuse Act. The
Plaintiffs seek damages and injunctive relief under these statutes on behalf of the entire Class for
these violations.
JURISDICTION AND VENUE
6.

This Court has personal jurisdiction over all Defendants because all conduct

business in this District. In addition, Defendants AT&T, T-Mobile, Samsung and Motorola are
incorporated under the laws of Delaware.
7.

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”), the Stored Electronic Communication Act,
18 U.S.C. § 2701 (“SECA”) and the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (the
“CAFA”) and pursuant to 28 U.S.C. § 1332(d) because the amount in controversy exceeds
$5,000,000.
8.

Venue is proper in this District because all conduct business in this District. In

addition, Defendants AT&T, T-Mobile, Samsung and Motorola are incorporated under the laws
of Delaware.
THE PARTIES
9.

Plaintiff Jeffrey Pacilli is an adult domiciled in New Jersey. Mr. Pacilli is an

AT&T customer and uses an Apple phone.
10.

Plaintiff Saima Mian is an adult domiciled in New Jersey. Ms. Mian is a Sprint

customer and uses an HTC phone.
11.

Plaintiff Amandeep Singh is an adult domiciled in New Jersey. Mr. Singh is a T-

Mobile customer and uses an Apple phone.

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12.

Plaintiff Marilyn Robledo is an adult domiciled in New Jersey. Ms. Robledo is an

AT&T customer and uses a Samsung phone.
13.

Defendant Carrier IQ is a Delaware corporation based in Mountain View, CA.

Carrier IQ designed the rootkit software at issue in this case.
14.

Defendant AT&T is a Delaware corporation based in Dallas, TX.

15.

Defendant T-Mobile is a Delaware corporation based in Bellevue, WA.

16.

Defendant Sprint is a Kansas corporation based in Overland Park, KS.

17.

Defendant Apple, Inc. is a California corporation based in Cuptertino, CA.

18.

Defendant HTC is a Texas corporation based in Bellevue, WA.

19.

Defendant Samsung Electronics America, Inc. is a New York corporation base in

Ridgefield Park, NJ.
20.

Defendant Samsung Telecommunications America, LLC is a Delaware limited

liability company based in Richardson, TX.
FACTUAL BACKGROUND
21.

Mountain View, California-based Carrier IQ sells software designed to help

wireless service providers and device makers identify and diagnose service and quality-related
problems such as dropped calls and battery drain. The software can be used to collect data for
analyzing service quality and what Carrier IQ calls “mobile customer experience.”
22.

The software is a type of rootkit software, which enables continued privileged

access to a computer (including smart phones and other mobile phones) while actively hiding its
presence from administrators by subverting standing operating functionality and other
applications.
23.

Carrier IQ claims to be the market leader in sales of “mobile service intelligence”

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rootkit software.
24.

Defendants Samsung, Apple, Motorola, and HTC pre-install Carrier IQ software

on cell phones used by its customers on the AT&T, T-Mobile and Sprint networks.
25.

Last month, a technology blogger and security researcher in Connecticut named

Trevor Eckhart discovered that this Carrier IQ software was conducting surreptitious and highly
intrusive tracking of cell phones. Eckhart described the software as a keystroke logging rootkit
that is hard-to-detect, hard-to-remove and programmed to run by default on millions of handsets
without the users’ knowledge.
26.

In addition to collecting device and service-related data, Carrier IQ’s software can

collect data about a user’s location, application use, Web browsing habits, videos watched, texts
read and even the keys they press.
27.

The software runs when the phone is switched on and can log all activities until it

is switched off.
28.

AT&T and Sprint have already admitted that their handsets run Carrier IQ’s

software. HTC and Samsung confirmed that their phones include the software, but both told the
press that it was only added after requests of the carriers.
29.

The Electronic Privacy Information Center, a non-profit organization in

Washington, D.C., noted that the use of Carrier IQ’s software to log data may constitute an
“unlawful intercept.”
30.

Former Unites States Department of Justice prosecutor Paul Ohm said that the use

of the software could be grounds for private legal action.
31.

On November 30, 2011, The United States Senate Committee on the Judiciary

wrote a letter to Carrier IQ, expressing deep concern about the scandal. Demanding immediate

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responses to 11 questions, the letter says that the actions alleged “may violate federal privacy
laws, including the Electronic Communications Privacy Act and the Computer Fraud and Abuse
Act. This is a potentially very serious matter.” (emphasis added).
CLASS ACTION ALLEGATIONS
32.

This is a class action pursuant to Rules 23(a) and (b)(3) of the Federal Rules of

Civil Procedure on behalf of a Class of all persons who had a wireless contract with at least one
of the Defendant wireless phone carriers – AT&T, Sprint, or T-Mobile – and who used at least
one cell phone manufactured and/or distributed by at least one Defendant Manufacturer – Apple,
HTC Samsung or Motorola – which contained rootkit software designed and sold by Carrier IQ
and whose privacy was violated. Excluded from the Class are the Court and any of the Court’s
family members, Defendants, and their officers, directors, employees, affiliates, legal
representatives, predecessors, successors and assigns, and any entity in which any of them have a
controlling interest.
33.

The members of the Class are so numerous that joinder of all members is

impracticable.
34.

Common questions of law and fact exist as to all members of the Class and

predominate over any questions affecting solely individual members of the Class. The questions
of law and fact common to the Class include whether Defendants violated the same federal laws.
35.

Plaintiffs’ claims are typical of the claims of other Class members, as all members

of the Class were similarly affected by Defendants’ wrongful conduct in violation of federal law
as complained of herein.
36.

Plaintiffs will fairly and adequately protect the interests of the members of the

Class and have retained counsel that is competent and experienced in class action litigation.

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Plaintiffs have no interest that is in conflict with, or otherwise antagonistic to the interests of the
other Class members.
37.

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

adjudication of this controversy since joinder of all members is impracticable. Furthermore, as
the damages suffered by individual Class members may be relatively small, the expense and
burden of individual litigation make it impossible for members of the Class to individually
redress the wrongs done to them. There will be no difficulty in management of this action as a
class action.
COUNT I
VIOLATION OF THE FEDERAL WIRETAP ACT, 18 U.S.C. § 2511
38.

Plaintiffs incorporate the above allegations by reference as if set forth more fully

39.

The Federal Wiretap Act, as amended by the Electronic Communications Privacy

herein.

Act of 1986, prohibits the willful interception of any wire, oral, or electronic communication.
40.

18 U.S.C. § 2520(a) provides a private right of action to any person whose wire,

oral or electronic communication is intercepted.
41.

Defendants placed rootkit software on plaintiffs’ phones that intercepted records

of users’ phone communications.
42.

Neither the Plaintiffs nor members of the Class consented to or were aware that

the Defendants were violating federal law and tracking this information.
43.

The data that the Defendants knowingly intercepted are “communications” within

the meaning of the Wiretap Act.
44.

Defendants intentionally and willfully placed the software on users’ phones and

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handset devices and intentionally and willfully intercepted the electronic communications of
such users.
45.

Plaintiffs are persons whose electronic communications were intercepted within

the meaning of Section 2520.
46.

Section 2520 provides for preliminary, equitable and declaratory relief, in

addition to statutory damages of the greater of $10,000 or $100 a day for each day of violation,
actual and punitive damages, reasonable attorneys’ fees, and disgorgement of any profits earned
by Defendants as a result of the above-described violations.
COUNT II
VIOLATION OF THE STORED ELECTRONIC COMMUNICATIONS ACT,
18 U.S.C. § 2701
47.

Plaintiffs incorporate the above allegations by reference as if set forth more fully

48.

The Stored Electronic Communications Act (“SECA”) provides a cause of action

herein.

against a person who intentionally accesses without authorization a facility through which an
electronic communication service is provided, or who intentionally exceeds an authorization to
access that facility, and thereby obtains, alters or prevents authorized access to a wire or
electronic communication while it is in storage in such a system.
49.

“Electronic Storage” is defined in the statute to be “any temporary, immediate

storage of a wire or electronic communication incidental to the electronic transmission thereof.”
50.

Defendants intentionally placed software on users’ phones that accessed their

stored electronic communications without authorization, and thus violated SECA.
51.

Plaintiffs and other member of the Class were harmed by Defendants’ violations,

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and are entitled to statutory, actual and compensatory damages, injunctive relief, punitive
damages, and reasonable attorneys’ fees.
COUNT III
VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT,
18 U.S.C. § 1030
52.

Plaintiffs incorporate the above allegations by reference as if set forth more fully

53.

Defendants intentionally accessed a computer used for interstate commerce or

herein.

communication, without authorization or by exceeding authorized access to such a computer, and
by obtaining information from such a protected computer.
54.

Defendants knowingly caused the transmission of a program, information, code or

command and as a result caused a loss to one or more persons during any one-year period of at
least $5,000 in the aggregate.
55.

Plaintiffs have also suffered a violation of the right of privacy as a result of

Defendants’ knowing actions.
56.

Defendants have thus violated the Computer Fraud and Abuse Act, 18 U.S.C. §

57.

Plaintiffs’ phones are “computers” within the meaning of the Act.

58.

Defendants’ unlawful access to Plaintiff’s computers and communications have

1030.

caused irreparable injury. Unless restrained and enjoined, Defendant may continue to commit
such acts. If Plaintiffs’ remedies at law are not adequate to compensate for these inflicted and
threatened injuries, Plaintiffs and the Class are entitled to remedies including injunctive relief as
provided by 18 U.S.C. § 1030(g).

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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
A.

Determine that this action is a proper class action under Rule 23 of the Federal

Rules of Civil Procedure;
B.

Award compensatory damages, including statutory damages where available, in

favor of Plaintiffs and the other members of the Class against Defendants for all damages
sustained as a result of Defendants’ wrongdoing, in an amount to be proven at trial, including
interest thereon;
C.

Permanently restrain Defendants, and its officers, agents, servants, employees and

attorneys, from installing software on cell phones that could track the users’ information in
violation of federal law;
D.

Award Plaintiffs and the Class their reasonable costs and expenses incurred in this

action, including counsel fees and expert fees; and
E.

Grant Plaintiffs such further relief as the Court deems appropriate.
JURY TRIAL DEMAND

The Plaintiffs demand a trial by jury of all issues so triable.
Respectfully submitted,
Dated: December 2, 2011.

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Respectfully submitted,
SIANNI & STRAITE LLP
By:
/s/ David A. Straite
David A. Straite (DE I.D. #5428)
Ralph N. Sianni (DE I.D. #4151)
1201 N. Orange St. Suite 740
Wilmington, DE 19801
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
KEEFE BARTELS LLC
Stephen G. Grygiel (DE I.D. #4944)
170 Monmouth Street
Red Bank, NJ 07701
Tel. [phone]
Fax [phone]
[e-mail]
Attorneys for Plaintiffs
OF COUNSEL FOR PLAINTIFFS:
KEEFE BARTELS LLC
John E. Keefe, Jr. (NJ 034081990)
Stephen T. Sullivan, Jr. (NJ 023411997)
170 Monmouth Street
Red Bank, NJ 07701
Tel. [phone]
Fax [phone]
[e-mail]
EICHEN CRUTCHLOW ZASLOW & MCELROY LLP
Barry R. Eichen (NJ 015851986)
Daryl L. Zaslow (NJ 014391996)
40 Ethel Road
Edison, New Jersey 08817
Tel. [phone]
Fax [phone]
[e-mail]

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