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 is a class action and commercial litigator who helps the world’s leading companies in the technology, consumer products, and other sectors navigate their most significant disputes. She has had exceptional success with early dispositive motions, distilling complex arguments to show why…

Amy Heath is a class action and commercial litigator who helps the world’s leading companies in the technology, consumer products, and other sectors navigate their most significant disputes. She has had exceptional success with early dispositive motions, distilling complex arguments to show why claims should not proceed. A former intelligence analyst, Amy brings the same sound strategic judgment, analytical rigor, attention to detail, efficiency, and commitment to client service to her practice of law.

Amy frequently litigates matters involving privacy, wiretap, contract, consumer protection, fraud, unfair competition, antitrust, and intellectual property claims. She has significant experience throughout the litigation lifecycle, including developing strategies to coordinate litigation across jurisdictions, including multidistrict litigation; briefing dismissal, class certification, and summary judgment motions; effectively navigating joint defense groups; and drafting and arguing appeals.

Amy also regularly counsels clients on the strategic considerations related to arbitration agreements. She drafts and revises arbitration clauses and class action waivers in terms of service, including to mitigate mass arbitration risk.

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, then 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.

Before practicing law, Amy served as an intelligence analyst at CIA, where she was a regular contributor to the President’s Daily Brief.

Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy co-chairs the firm’s Class Actions Litigation Practice Group and serves on the leadership committee for the firm’s Technology Industry Group. She defends clients in complex, high-stakes class action disputes and has achieved significant victories across various industries, including technology, entertainment, consumer…

Kate Cahoy co-chairs the firm’s Class Actions Litigation Practice Group and serves on the leadership committee for the firm’s Technology Industry Group. She defends clients in complex, high-stakes class action disputes and has achieved significant victories across various industries, including technology, entertainment, consumer products, and financial services. Kate has also played a key role in developing the firm’s mass arbitration defense practice. She regularly advises companies on the risks associated with mass arbitration and has a proven track record of successfully defending clients against these challenges.

Leveraging her success in class action litigation and arbitration, Kate helps clients develop strategic and innovative solutions to their most challenging legal issues. She has extensive experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws, including the Sherman Act, California Consumer Privacy Act (CCPA), California Invasion of Privacy Act (CIPA), Wiretap Act, Stored Communications Act, Children’s Online Privacy Protection Act (COPPA), Video Privacy Protection Act (VPPA), along with common law and constitutional rights of privacy, among others.

Recent Successes:

Represented Meta (formerly Facebook) in a putative nationwide advertiser class action alleging violations under the California Unfair Competition Law (UCL) related to charges from allegedly “fake” accounts. Successfully narrowed claims at the pleadings stage, defeated class certification, opposed a Rule 23(f) petition, won summary judgment, and defended the victory on appeal to the Ninth Circuit. The Daily Journal selected Covington’s defense of Meta as one of its 2021 Top Verdicts, and Law.com recognized Kate as a Litigator of the Week Shoutout.
Defeated a landmark class action lawsuit against Microsoft and OpenAI contending that the defendants scraped data from the internet for training generative AI services and incorporated data from users’ prompts, allegedly in violation of CIPA, the Computer Fraud and Abuse Act (CFAA), and other privacy and consumer protection laws.

Kate regularly contributes to the firm’s blog, Inside Class Actions, and was recently featured in a Litigation Daily interview titled “Where Privacy Laws and Litigation Trends Collide.” In recognition of her achievements in privacy and antitrust class action litigation, the Daily Journal named her as one of their Top Antitrust Lawyers (2024), Top Cyber Lawyers (2022), and Top Women Lawyers in California (2023). Additionally, she received the Women of Influence award from the Silicon Valley Business Journal and was recognized by Daily Journal as a Top Attorney Under 40.