Three American consumers have filed a federal lawsuit against Apple, alleging that faults in iMessage, the iPhone’s texting service, amount to wiretapping because iMessage “intercepts” and retains messages that should be delivered to Android users. (Download a PDF of the complaint here.)
The suit was triggered by customers who switched from iPhone to Android smartphones, and who discovered that they were then unable to receive texts from iPhone users after they made the switch.
Apple has denied the claims in both suits. The company declined comment when reached by Business Insider.
The new complaint is the second lawsuit seeking class-action status on behalf of all customers who found that it’s difficult to remove your phone number from Apple’s iMessage system, so texts from iPhone users end up stuck inside it instead of being delivered to your current Android phone.
The first complaint used a standard claim that Apple’s failure to deliver iPhone texts was a breach of contract that harmed consumers by preventing them from getting full use of their Android phones.
“Intercepted” messages are allegedly held indefinitely
This new lawsuit goes a step further, by claiming that iPhone texts are “illegally intercepted and interned by Apple” when sent to Android users. The “intercepted” messages are held indefinitely, the suit claims, and that allegedly counts as “unauthorised access” to a computer system and a violation of both the Stored Communications Act and the Federal Wiretap Act. As their names suggest, those laws make it illegal to conduct wiretaps or hack people’s computer information. The plaintiffs argue:
Apple continues to access, intercept, collect, and not deliver the text messages sent to the now non-iPhone user. The result is not some minor “inconvenience” (as Apple seeks to portray it), but the continued unlawful accessing, interception, and non-delivery of text messages …
The technical fault lies in iMessage, Apple’s default messaging app. When a text is sent via iMessage, it seeks out the iPhone number it’s being sent to via Apple’s iCloud system. If it cannot find an iPhone with that number — because the customer has switched the number to Android — then iMessage frequently fails to deliver the message.
Apple isn’t literally reading your texts, but …
On the one hand, the suit can be dismissed as typical of the US’s culture of litigation: silly Americans seeking a cash payout for a minor technical glitch, hoping Apple will pay to make them go away. Apple isn’t literally tapping your texts in the hopes of reading your messages, after all.
But like all lawsuits, the new complaint also has the potential to get out of hand for Apple. It spins a technical glitch into a startling claim that Apple is hoarding texts meant for customers of rival phones. It is true that iPhones often don’t deliver text messages to customers who switch to Android. By definition, an Android customer is not an Apple customer. Apple’s systems are therefore diverting and retaining messages intended for customers of other companies. And, as Android customers expect their iPhone accounts with Apple to be cancelled, Apple’s retention of their messages in its systems counts as “unauthorised access,” the new suit claims.
For its part, Apple says customers can fix this problem by unhooking their iPhone from iMessage and iCloud 45 days before they switch to Android. (But few customers remember to do that, or are even aware it needs to be done — the instructions are in the fine print and terms of service that nobody ever reads.)
iMessage has still not been fixed
The iMessage problem is real: Business Insider has received 551 emails from angry readers complaining that they stopped getting texts from friends with iPhones when they switched to Android devices. Many of these customers say they felt forced to buy new iPhones weeks after purchasing a new Android, just so they could communicate with their friends.
A handful of former Apple retail and support employees have told Business Insider that the company has known about the issue for years. It appears that it still isn’t fixed, as this recent Lifehacker story indicates.
(The situation has led to a widespread conspiracy theory among disaffected iPhone users: that Apple actually likes the fact that iMessage punishes customers who defect to Android, many of whom are forced to return to iPhone when they can’t get their texts. Why else would Apple have left iMessage unfixed for two years? There is, of course, no evidence to back this theory, and the theory is not alleged in the lawsuit. But that is the false impression that iMessage is giving many consumers.)
Both lawsuits cite Business Insider’s coverage of the iMessage problem, although we had no knowledge of either suit being prepared.
“He was not receiving his text messages because they were being intercepted by Apple.”
In the new suit, Adam Backhaut claims that he and his wife, Bouakhay Joy Backhaut, bought a new iPhone 5 each in December 2012 at a Best Buy store in Michigan. Adam then switched to an HTC One and says he immediately found his wife could no longer text him. The suit reads as if Apple wiretapped the couple:
… After Mr. Backhaut realised that he was not receiving his text messages because they were being intercepted by Apple, Mr. Backhaut attempted to remove his phone number from the iMessage system but was unsuccessful. Apple continued to intercept text messages intended for him from his wife, business associates, and anyone else who was an iPhone/iMessage User.
A third plaintiff, Kenneth Morris, claims the same thing. “Apple improperly retains the former iPhone/iMessage User’s phone number in its iMessage systems,” the suit says. All three plaintiffs were longtime Apple users before they sued. Morris bought his iPhone 5 in October 2012 at an Apple Store in Palm Springs, California, but he switched to an Android in December 2012. The suit does not say why.
Apple has been aware of the issue since Jan. 5, 2012, the suit alleges, when Techcrunch wrote an article called “iMessage Bug Traps Android Converters’ Personal Conversations… But There’s A Fix!” (There isn’t actually a fix.) “Nonetheless, Apple has failed to correct the problem,” the suit claims.
Apple says iMessage isn’t designed to work with Android
Needless to say Apple has made a number of arguments against the case. (Read Apple’s motion to dismiss here.) First, Apple argues, iMessage only works on iPhones so it is not surprising that it doesn’t deliver messages to Android:
To send and receive iMessages, users must have an Apple device, the appropriate iOS/OS operating software, and Apple’s proprietary “Messages” application. As such, this free benefit can be provided only to Apple users; iMessaging does not work with other manufacturers’ devices.
(Since the litigation started, Apple has actually released a standalone app version of iMessage for Android.) Apple also says that none of the customers informed Apple they were switching to Android:
Neither Mr. Backhaut nor Mr. Morris alleges that he took any steps to disassociate his telephone number from iMessage, or to notify Apple in any way, prior to switching to a non-Apple device. Each alleges that he “attempted to remove his phone number from the iMessage system” after switching to his non-Apple device, but neither describes what he claims to have done.
Perhaps more relevantly, Apple also points out that it isn’t deliberately intercepting Android text messages and therefore lacks the required intent to be liable for wiretapping.
Finally, Apple points out that iMessages are stored on its own systems, to which it obviously has authorised access, and that those messages are stored “in the ordinary course of its business,” which is allowed under the Wiretap Act.
On this last point, the plaintiffs argue that as the messages are intended for customers of other companies, storing those messages without alerting customers does involve an unauthorised access to their computer information.
Apple has also filed papers arguing against the first iMessage case, filed by Adrienne Moore, a California resident who switched from an iPhone 4 to Android in 2014. (Read Apple’s motion to dismiss here.) The Moore case, also a potential class-action, is a more run-of-the-mill complaint about the way iMessage allegedly interferes with Moore’s contract with Verizon, which provides her wireless service: “solely as a result of Apple’s intermeddling through its iMessage service, Moore is prevented from receiving the very text messages that her wireless contract entitles her to claim.” (Read Moore’s motion here.)
The company points out that iMessage wasn’t initially available on iPhone 4 when Moore bought the device, and that therefore she cannot have been defrauded by the company. iMessage was only added in a later update to the iOS operating system that runs on iPhone.
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