Last year, Apple’s iOS14 incorporated a new feature notifying users when an app copied from the iPhone’s clipboard.  The feature resulted in media scrutiny for a number of well-known apps, some of which faced putative class action lawsuits as a result.  A court in the Eastern District of California recently dismissed one such suit, Mastel v. Miniclip SA, No. 2:21-cv-00124 (E.D. Cal.).  In that decision, the court rejected a broad interpretation of telephone “instrument” under the California Invasion of Privacy Act (“CIPA”), concluding that non-telephonic smartphone functionality does not constitute a telephone instrument.

The plaintiff in that case sued Miniclip, a videogame developer, under CIPA’s wiretapping provision, Cal. Penal Code § 631(a), based on allegations that Miniclip’s app accessed the iPhone clipboard without plaintiff’s consent each time he opened the app.  According to plaintiff, that access amounted to “tap[ping], or mak[ing] any unauthorized connection . . . with any telegraph or telephone wire, line, cable, or instrument” in violation of CIPA.

The court rejected plaintiff’s argument.  As the court explained, while “iPhones contain the word ‘phone’ in their name, and have the capability of performing telephonic functions, they are, in reality, small computers.”  The court further determined that the clipboard “is a feature of the portion of the iPhone that functions as a computer, not the phone,” so it did not constitute a telephone instrument under CIPA.  In the same order, the court also dismissed claims under another provision of CIPA and the Stored Communications Act after finding that the clipboard text was not “in transit” or in “electronic storage,” respectively.  Further, it dismissed a privacy claim under the California Constitution for lack of “egregious” conduct and dismissed a claim under California’s Unfair Competition Law because the plaintiff lacked statutory standing.

The court’s refusal to extend CIPA’s intentional wiretapping provision may prove useful to other defendants facing novel applications of the privacy law.

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Photo of Amy Heath Amy Heath

Amy Heath focuses on complex commercial litigation and also has experience with internal investigations. Before joining the firm, Amy clerked for the Honorable Michelle T. Friedland of the United States Court of Appeals for the Ninth Circuit and the Honorable Lucy H. Koh

Amy Heath focuses on complex commercial litigation and also has experience with internal investigations. Before joining the firm, Amy clerked for the Honorable Michelle T. Friedland of the United States Court of Appeals for the Ninth Circuit and the Honorable Lucy H. Koh of the United States District Court for the Northern District of California. Amy maintains an active pro bono practice that focuses on direct services for individual clients.

Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy specializes in defending clients in complex, high-stakes disputes including class action and antitrust cases. Her practice includes privacy, antitrust, and consumer protection matters in the technology, entertainment, financial services, and food, drug, and cosmetic industries, among others, and she has significant

Kate Cahoy specializes in defending clients in complex, high-stakes disputes including class action and antitrust cases. Her practice includes privacy, antitrust, and consumer protection matters in the technology, entertainment, financial services, and food, drug, and cosmetic industries, among others, and she has significant experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws.