On October 25, 2019, the US District Court for the Northern District of California dismissed a putative class action brought by iTunes users who alleged that Apple, Inc. sold, rented, transmitted or disclosed their personal listening information to “data aggregators, data appenders,, data cooperatives, list brokers, and other third parties” without their consent, in violation of Rhode Island and Michigan privacy laws and common law principles of unjust enrichment.
The plaintiffs claimed injury in the form of overpayment, loss of value of their personal listening information, unwarranted junk mail and telephone solicitations, and risk of identity theft.
Apple moved to dismiss the action. The court found that both of the statutes under which the suit was brought – the Rhode Island Video, Audio and Publication Rentals Privacy Act* (“RIVRPA”) and Michigan’s Preservation of Personal Privacy Act,** (“MIPPPA”) — impose liability only if a customer’s name and address is disclosed with his or her music selection information. The court held that the complaint failed to allege plausibly and with enough facts that Apple disclosed the plaintiffs’ personal listening information to third parties, causing plaintiffs the alleged damages, or that Apple disclosed the plaintiffs’ identities in connection with their music selection information.
The complaint also alleged that the iTunes app discloses a user’s name and music download history when another user attempts to “gift” a song to another customer, since the program informs the giver if the prospective recipient has already purchased that song. As to this claim, the court found that the complaint failed to provide any evidence that the plaintiffs used the gifting function, let alone suffered an injury; the court thus held that the plaintiffs had failed to establish standing with regard to this claim.
The court also dismissed the plaintiffs’ claim of unjust enrichment, on the grounds that the complaint had not established the predicate fact of Apple’s having disclosed their personal listening information.
While granting Apple’s motion to dismiss as to each of the claims asserted in the complaint, Judge Alsup allowed the plaintiffs the opportunity to amend their complaint, but noted “it will not necessarily be enough to add a sentence parroting each missing item identified herein” and “if plaintiffs so move, they should plead their best case.”
* R.I. Gen. Laws § 11-18-32
** H.B. 5331, 84th Leg., Reg. Sess., P.A. No. 378, §§ 1-4 (Mich. 1988), id. § 5, added by H.B. 4694, 85th Leg., Reg. Sess., P.A. No. 206, § 1 (Mich. 1989)