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Cousineau v. Microsoft Corp.

United States District Court, W.D. Washington

March 25, 2014

REBECCA COUSINEAU, Plaintiff,
v.
MICROSOFT CORPORATION, Defendant

For Rebecca Cousineau, individually on her own behalf and on behalf of all others similarly situated, Plaintiff: Benjamin H. Richman, Benjamin Scott Thomassen, J Dominick Larry, LEAD ATTORNEYS, PRO HAC VICE, EDELSON LLC, CHICAGO, IL; Chandler R. Givens, LEAD ATTORNEY, PRO HAC VICE, Ari J. Scharg, Jay Edelson, Rafey S Balabanian, PRO HAC VICE, EDELSON PC, CHICAGO, IL; Janissa Ann Strabuk, Kim D Stephens, TOUSLEY BRAIN STEPHENS, SEATTLE, WA.

For Microsoft Corporation, a Delaware corporation, Defendant: Fred B Burnside, Stephen M. Rummage, Zana Bugaighis, DAVIS WRIGHT TREMAINE (SEA), SEATTLE, WA.

OPINION

Page 1168

HONORABLE John C. Coughenour, UNITED STATES DISTRICT JUDGE.

ORDER

This matter comes before the Court on Defendant's motion for summary judgment (Dkt. No. 100) and Plaintiff's motion for class certification (Dkt. No. 70). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the summary-judgment motion and DISMISSES as moot the class-certification

Page 1169

motion for the reasons explained herein.

I. BACKGROUND

This case concerns Microsoft's Windows Mobile 7 operating system--in particular, when and how the phone's software accessed stored location information.

A. Location Framework Platform

The " location framework" was a software component of the Windows Mobile 7 operating system. (Dkt. No. 100 at 9; Dkt. No. 105 at 7.) Software applications, such as search or mapping services, " called" this framework in order to obtain location information to incorporate into the applications' services. (Dkt. No. 100 at 9; Dkt. No. 105 at 7.) When the location framework received a call from an application, it could resolve the location request in one of several ways. (Dkt. No. 100 at 10; Dkt. No. 105 at 8.) Most relevant in this case were the ways that the location framework resolved requests using " beacons." [1] (Dkt. No. 100 at 10; Dkt. No. 105 at 8-9.)

Beacons are sources of signals in the world, such as Wi-Fi access points or cell towers. (Dkt. No. 100 at 10; Dkt. No. 105 at 7.) Each beacon transmits unique identifying data and can be identified accordingly. (Dkt. No. 105 at 7.) This has allowed Microsoft to compile a database called " Orion," which contains location information about the latitude and longitude of beacons around the world. (Dkt. No. 91 ¶ 9; Dkt. No. 100 at 10; Dkt. No. 105 at 7.) A Windows Phone 7 device interacted with Orion and could both send and receive information about the locations of beacons. (Dkt. No. 91 ¶ ¶ 9, 16; Dkt. No. 105 at 9.) Orion transmitted beacon data to a phone in the form of " tiled" data or " tiles." (Dkt. No. 91 ¶ 9; Dkt. No. 105 at 8.) " The tiles are best visualized as rectangular excerpts from Orion's larger map of beacons in the area." (Dkt. No. 91 ¶ 9.) Tiles were stored in the phone's random access memory (" RAM" ),[2] and stayed on the phone for roughly ten days before being discarded as stale. (Dkt. No. 91 ¶ 14.)

Upon receiving a location request, the location framework looked for nearby visible beacon signals. (Dkt. No. 100 at 10; Dkt. No. 105 at 8.) The location framework then looked at the information about beacons contained on the RAM-stored tiles. (Dkt. No. 100 at 11; Dkt. No. 105 at 8-9.) If the two sets of beacon data matched--i.e., if the tiles contained location information for the " seen" beacons--then the location framework could ascertain the phone's location, and the framework returned that location to the requesting application. (Dkt. No. 100 at 11; Dkt. No. 105 at 8-9.) If the " seen" beacons did not match the tiles, then the location framework called Orion for new tile data. (Dkt. No. 100 at 11; Dkt. No. 105 at 5.) If the new tiles contained relevant data, then the location framework returned a location to the requesting application. (Dkt. No. 105 at 5.) As this description suggests, some location requests were resolved entirely on the phone, so not every location request necessarily involved transmitting data to or from Orion. (Dkt. No. 69 at 12; Dkt. No. 100 at 11.)

B. Permission to use location

Generally, users had to consent to allowing applications to make calls to the location

Page 1170

framework. (Dkt. No. 100 at 9-10; Dkt. No. 105 at 7-8.) Each phone had a master switch for location services in its settings menu. (Dkt. No. 91 ¶ 4.) With one exception not relevant here,[3] applications could access the location framework only if this setting was turned " on." (Dkt. No. 91 ¶ 4.)

In addition to the master location switch, the individual camera application asked the user a question about location services. When a user first ran the camera application, ...


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