Accurate Headline: Court Affirms Dismissal Based on Failure to State a Claim No, the 9th Circuit Court of Appeals did not rule that “automakers can record and intercept owner text messages.” The...
Exemplary
Accurate Headline: Court Affirms Dismissal Based on Failure to State a Claim
No, the 9th Circuit Court of Appeals did not rule that “automakers can record and intercept owner text messages.” The 9th Circuit Court of Appeals affirmed the district court’s dismissal under Rule 12(b)(6), which is dismissal for “failure to state a claim upon which relief can be granted.”
In a case consolidated for argument with the instant appeal, Jones v. Ford Motor Co., … we affirmed the district court’s dismissal under Rule 12(b)(6). We have jurisdiction pursuant to 28 U.S.C. § 1291 and for the same reasons set out in Jones, we affirm.
Stepping back for just a second to emphasize how early in the process these cases were.
The timeline in this case is:
September 3, 2021: Removed from state court to federal court
October 1, 2021: Defendant files motion to dismiss
October 12, 2021: Judge sets deadlines for briefs on motion to dismiss
November 5, 2021: Deadline for Plaintiffs to respond (oppose) to motion to dismiss
November 19, 2021: Deadline for Defendant to file a reply in support of its motion to dismiss
November 4, 2021: Plaintiff files first amended complaint
November 18, 2021: Defendant files motion to dismiss first amended complaint
December 2, 2021: Judge sets deadlines for briefs on motion to dismiss
January 5, 2022: Deadline for Plaintiffs to respond (opposing) to motion to dismiss
January 28, 2022: Deadline for Defendant to file a reply in support of its motion to dismiss
January 5, 2022: Plaintiffs file response (opposing) to motion to dismiss
January 28, 2022: Defendant files reply in support of its motion to dismiss
May 5, 2022: Judge issues an order granting defendant’s Motion to Dismiss and gives Plaintiffs 14 days to file a second amended complaint if they want
May 12, 2022: Plaintiffs file Notice of Intent to Appeal
June 8, 2022: Notice of Appeal to Ninth Circuit by Plaintiffs
November 7, 2023: Dismissal affirmed
So, it’s been more than 2 years since this case was filed, but this was dismissed so early in the process that Defendants hadn’t even responded to the Plaintiffs' claims. 12(b) motions “must be made before ... a responsive pleading.” If you opened the Rule 12(b)(6) link above, or happen to known rules of civil procedure, you’ll see that Rule 12(a) on that same page is the rule about “Time to Serve a Responsive Pleading.”
It doesn’t get much earlier in the process than a 12(b) motion.
Basis of 12(b)(6) Motions to Dismiss
Motions to dismiss under 12(b)(6) can be based on either (1) the lack of a cognizable legal theory or (2) the absence of sufficient facts alleged under a cognizable legal theory. SeeBalistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
Here, there was a cognizable legal theory. The alleged cognizable legal theory was a violation of the Washington Privacy Act enforceable by private civil action under WASH. REV. CODE § 9.73.060. But the facts were not sufficiently alleged under that cognizable legal theory.
Standard of Review
When courts consider 12(b)(6) motions to dismiss:
Material allegations are taken as admitted and the complaint is construed in the plaintiff’s favor.Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir. 1983) (emphasis added).
Pleading standards aren’t meant to be burdensome.
The discovery process hasn’t taken place. And pleadings don’t need to allege facts sufficient to convince a finder of fact of defendant’s liability based on the preponderance of the evidence: there is no evidence at this point. There is ONLY the complaint. If you want to read more on discovery head over to FRCP Rule 26-37.
So…if everything in the complaint is construed - taken - in the plaintiff’s favor, how do we know what “sufficient facts” alleged looks like?
Well…to start:
[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-55 (2007) (internal citations omitted).
So plaintiff needs their complaint to have:
More than labels and conclusions
More than a formulaic recitation of the elements of a cause of action
That’s helpful, but…some more guidance on this would be helpful.
“Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555.
So we’re looking for factual allegations that get us above speculation assuming that all the allegations in the complaint are true. That’s helpful and consistent with the standard in Keniston that says the complaint should be construed in favor of the plaintiff.
The complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly at 547.
Great, so we’re looking for plausible but we don’t need to hit probable. We need more than labels and conclusions. And we need more than formulaic recitations of the...elements of a cause of action.
A cause of action is a set of predefined factual elements that allow for a legalremedy. The factual elements needed for a specific cause of action can come from a constitution, statute, judicial precedent, or administrative regulation.
In this case it’s a statute, the WPA.
The Washington State Privacy Act prohibits:
Someone - any individual, partnership, corporation, association, or the State of Washington, its agencies and political subdivisions - from
intercepting or recording any… and
an injury to one’s business, person, or reputation for a private civil action
So, plaintiff should allege sufficient facts to make 1, 2, and 3 seem plausible.
What Happened?
Plaintiff didn’t allege an injury. That’s what happened.
Plaintiff alleged a hypothetical, possible injury. And that injury is predicated on an unrelated third-party company hacking their infotainment system with specialized hardware and software. The district court - not unexpectedly - concluded that this speculative injury is not an injury in fact and granted dismissal.
Plaintiff Dornay alleges he was injured in his person: (1) because “Plaintiff Dornay’s private and confidential text messages and call logs now reside on his VW[GoA] vehicle, can be accessed without his authorization by Berla systems, and cannot be deleted by Plaintiff Dornay. District Court Order Granting Dismissal
The 9th Circuit Court of Appeals - not unexpectedly - agreed with the district court that a speculative injury is not an injury in fact and affirmed.
We also conclude, as in Jones, that the district court properly dismissed the merits of Plaintiffs’ claim under the WPA. See Jones, 2023 WL 7097365, at *3. The district court properly dismissed Plaintiffs’ claim for failure to satisfy the WPA’s section 9.73.060 statutory injury requirement. To succeed at the pleading stage of a WPA claim, Plaintiffs must allege an injury to “his or her business, his or her person, or his or her reputation.” WASH. REV. CODE § 9.73.060. Plaintiffs’ allegation that a violation of the WPA itself is enough to satisfy injury to a “person” under section 9.73.060, without more, is insufficient to meet the statutory requirement. Order Affirming at p. 2
Now, you might be thinking… why didn’t the plaintiffs sue Berla? Well, because until Berla does something there can be no injury there either.
Other Highlights
The author of linked article “is a reporter covering privacy, disinformation and cybersecurity policy for The Record.” Let’s go with Hanlon’s Razor - or something - because everything from the title to final period was at best misinformed.
As far as I could tell from reviewing the filings, none of the plaintiffs in any of the cases actually alleged that the automakers accessed, used, or transmitted any of the information stored in the infotainment system. All they alleged was that the infotainment system stored copies of the data and that Berla could theoretically hack it. Berla is that unrelated third-party.
The Plaintiff in the Honda case never even alleged which model Honda he owns. Or if it was a Honda. Oh, and he also alleged it was a 2015 model in one complaint and a 2021 model in another. I forget which was in the original and which was in the amended complaints.
You can find all of this information for yourself at https://www.courtlistener.com/ if you search by attorney: “Joel B Ard”
While your post makes an excellent cle outline on dismissals, it still begs the question the implications of the result. One of the most distressing implications is that there is no cause of...
While your post makes an excellent cle outline on dismissals, it still begs the question the implications of the result.
One of the most distressing implications is that there is no cause of action against automakers for slurping your text messages. “No cause of action” means it’s not illegal.
The bill of rights was a solution to the government doing this type of thing. At the time they were written, it never occurred to most people that private corporations would assume the magnitude of governments in terms of power, reach, and influence on individual and collective lives.
I don’t know whether i believe the court got their ruling correct (and my opinion is irrelevant), but either way we the people should be alarmed.
What are the implications? Well, I think the main implication could be summed up as: This decision wasn’t about privacy or data collection. It was a run of the mill 12(b)(6) decision. No one...
What are the implications?
Well, I think the main implication could be summed up as:
If someone wants to file a private civil action based on this particular state law, they should allege an actual injury not a speculative injury.
This decision wasn’t about privacy or data collection. It was a run of the mill 12(b)(6) decision.
No one should be any more alarmed about privacy issues than they were before they saw this headline and misinformed article.
The article linked here bordered on disinformation. Arstechnica’s coverage of it wasn’t quite as bad but did contain copy that was inflammatory and misguided.
The implication is that the taking and interception of text messages is itself not an injury. I am not surprised to learn that judges don’t consider that illegal, but I am alarmed and sadden, and...
The implication is that the taking and interception of text messages is itself not an injury. I am not surprised to learn that judges don’t consider that illegal, but I am alarmed and sadden, and so should be anyone who cares about this sort of thing.
How is a system which is designed to display information from another device meant to do so without accessing that information? Because absent any evidence to the contrary (which has not been...
How is a system which is designed to display information from another device meant to do so without accessing that information? Because absent any evidence to the contrary (which has not been provided), that's all these machines are doing.
Are they meant to slurp all my texts? My car only announces the phone number of an incoming call. I’d be quite unhappy if it was accessing anything else.
Are they meant to slurp all my texts? My car only announces the phone number of an incoming call. I’d be quite unhappy if it was accessing anything else.
Again, the plaintiffs in this case never offered any evidence actual data collection was happening beyond what was necessary. Some cars will read your texts to you while you're driving, so I would...
Again, the plaintiffs in this case never offered any evidence actual data collection was happening beyond what was necessary. Some cars will read your texts to you while you're driving, so I would expect them to need access to the content of the messages for that.
I'm not saying it wouldn't be bad if they were doing what you suggest, only that I can't say whether they are based on what's provided here.
What I am saying is: This article is tilting at windmills.
You don’t need to offer evidence to survive a 12(b) (6), but assuming you meant they never made the allegation, and assuming also that’s true, i’m forced to agree that I’m arguing over nothing. I...
Again, the plaintiffs in this case never offered any evidence actual data collection was happening beyond what was necessary
You don’t need to offer evidence to survive a 12(b) (6), but assuming you meant they never made the allegation, and assuming also that’s true, i’m forced to agree that I’m arguing over nothing. I thought they did make that allegation, my apologies if I misunderstood.
Yeah I meant "evidence" in the colloquial sense, not the legal one. Anyway, the article is written so you'll come to the conclusion you did. It's pretty light on journalistic integrity. That's why...
Yeah I meant "evidence" in the colloquial sense, not the legal one. Anyway, the article is written so you'll come to the conclusion you did. It's pretty light on journalistic integrity. That's why I'm in here railing against it like I am. More trying to debunk than argue.
Hopefully at least a couple of people will sleep a little better knowing their car probably isn't trying to invade their privacy.
Who was harmed? How were they injured? It's of course valid to be concerned about what might happen. I can imagine ways that copying some text messages might betray a secret and harm someone. And...
Who was harmed? How were they injured?
It's of course valid to be concerned about what might happen. I can imagine ways that copying some text messages might betray a secret and harm someone. And a result of this case, I do wonder about how this car is designed. What vulnerabilities are there? Security professionals are paid to be paranoid about such things.
But often, no harm is done, even on insecure systems. A door might be left unlocked, but fortunately nobody tried opening it. The password was insecure, but nobody guessed it. Maybe some data was copied somewhere it shouldn't have been, but nobody noticed.
Until something bad actually happens, we have to speculate about what might have been, and apparently you can't sue over that sort of thing.
(It would be different, though, if the car manufacturer made a promise and didn't keep it.)
In other contexts, mere exposure to risk is sufficient (legal) injury to sustain a cause of action. Advertising cigarettes to children comes to mind. In criminal law, any unwanted touch, however...
In other contexts, mere exposure to risk is sufficient (legal) injury to sustain a cause of action. Advertising cigarettes to children comes to mind. In criminal law, any unwanted touch, however slight, or however lacking in change to the condition of my body, is battery. In my mind, copying my texts without permission is well beyond a mere brush on my arm.
The statutory law here may not include exposure as an injury. My exhortation is that this is wrong-merely copying my texts is an injury, a violation of my informational integrity, and should be enough to sustain a cause.
Not exactly, though? Under this particular law in this particular state as it currently exists, to maintain a private civil action there must be an actual injury in addition to conduct that...
Not exactly, though?
Under this particular law in this particular state as it currently exists, to maintain a private civil action there must be an actual injury in addition to conduct that violates the statue.
Maybe we could agree to this being the implication:
If you take issue with this particular state statute being written the way it is and you live in the State of Washington, lobby your legislators to change it.
Thanks for this. Even though I doubt most articles I read because journalism nowadays is more about "clicks" and narratives than the truth, there are times I get duped, and don't have the time to...
Thanks for this. Even though I doubt most articles I read because journalism nowadays is more about "clicks" and narratives than the truth, there are times I get duped, and don't have the time to research the facts.
Lawsuit document: https://www.documentcloud.org/documents/24133084-22-35448 From article: Well this is disturbing to say the least. Surely there is a market for those of us who want "dumb" tech,...
The plaintiffs in the four live cases had appealed a prior judge’s dismissal. But the appellate judge ruled Tuesday that the interception and recording of mobile phone activity did not meet the Washington Privacy Act’s standard that a plaintiff must prove that “his or her business, his or her person, or his or her reputation” has been threatened.
[T]he appellate judge ruled Tuesday that the interception and recording of mobile phone activity did not meet the Washington Privacy Act’s standard that a plaintiff must prove that “his or her business, his or her person, or his or her reputation” has been threatened.
In an example of the issues at stake, plaintiffs in one of the five cases filed suit against Honda in 2021, arguing that beginning in at least 2014 infotainment systems in the company’s vehicles began downloading and storing a copy of all text messages on smartphones when they were connected to the system.
Once messages are downloaded, Berla’s software makes it impossible for vehicle owners to access their communications and call logs but does provide law enforcement with access, the lawsuit said.
Well this is disturbing to say the least. Surely there is a market for those of us who want "dumb" tech, including car related products. Also, my anxiety disorder would go NUTS with this, so personally, I'd argue there IS harm done to the consumer. But ofc I'm not a lawyer, so I don't know if that argument would have any merit.
The Seattle-based appellate judge ruled that the practice does not meet the threshold for an illegal privacy violation under state law, handing a big win to automakers Honda, Toyota, Volkswagen and General Motors, which are defendants in five related class action suits focused on the issue.
Hopefully at least one of these will end in favor of the consumer. When will we get rights to our own data? I'm no longer connecting my phone to my car. I have a 2015 Mini Cooper, so I'm guessing my car falls within this lawsuit's ruling, although the article states that the defendants are Honda, Toyota, Volkswagen and General Motors, and Mini is owned by BMW. So maybe I'm safe. Not sure.
I don't understand this ruling. Your private messages, on your private device, likely only played with you alone in the car and somehow there's no potential to damage reputation?! Like, if your...
I don't understand this ruling. Your private messages, on your private device, likely only played with you alone in the car and somehow there's no potential to damage reputation?! Like, if your significant other likes to call you Daddy or something, Honda can just keep a copy of that forever?
To quote, and paraphrase, a line from Lock, Stock, and Two Smoking Barrels "Because who wants their bank manager Car Dealer to know they tickle asses get called Daddy when they're not paying their checks car note."
Someone should've told this judge he can never discuss legal business in the car anymore because he's leaking sensitive case materials to Honda corporate and see how fast he changes his tune.
That’s the least of it. You could have telehealth appointments with clinicians or a therapist. You could have conversations with your sponsor from an addiction recovery program. You could be...
I don't understand this ruling. Your private messages, on your private device, likely only played with you alone in the car and somehow there's no potential to damage reputation?! Like, if your significant other likes to call you Daddy or something, Honda can just keep a copy of that forever?
That’s the least of it. You could have telehealth appointments with clinicians or a therapist. You could have conversations with your sponsor from an addiction recovery program. You could be discussing things with your lawyer that are covered under attorney client privilege.
As for not understanding the ruling: that wasn’t the ruling. The “ruling” was the plaintiffs failed to state a claim upon which relief could be granted. No evidence was presented. No discovery was...
As for not understanding the ruling: that wasn’t the ruling.
The “ruling” was the plaintiffs failed to state a claim upon which relief could be granted. No evidence was presented. No discovery was undertaken. These were complaints a 1L would be embarrassed to submit in their legal writing class.
And as a fun hypothetical, if the things you’re discussing are covered under attorney client privilege, you’re likely to have a good argument that the evidence should be excluded. The argument would be it’s analogous to having a conversation with your attorney by email/text and not analogous to having a conversation with your attorney in an elevator with other people around. And don’t forget, if you’re concerned about government action in violation of the 4th Amendment: the ONLY remedy is the exclusion of evidence.
Maybe this will help you chill out about it. None of the plaintiffs alleged the automakers did anything with the data. They alleged that there’s a copy of it on the infotainment system and that a...
Maybe this will help you chill out about it. None of the plaintiffs alleged the automakers did anything with the data.
They alleged that there’s a copy of it on the infotainment system and that a third-party could hack it with specialized hardware and software.
It would be like filing a lawsuit against Sandisk because someone could theoretically access the data you put on the Sandisk sd card that you bought. But Sandisk didn’t do anything with the data on your sd card after you bought it.
I also want to emphasize that these are allegations not proven facts and that the allegations were so deficient that the cases got tossed out literally as fast as possible.
An SD card isn't online, and companies can't just grab and read hard drive data. I'm much less sure about that assertion when it comes to modern day cars. They tried to tie seat warming to...
It would be like filing a lawsuit against Sandisk because someone could theoretically access the data you put on the Sandisk sd card that you bought.
An SD card isn't online, and companies can't just grab and read hard drive data. I'm much less sure about that assertion when it comes to modern day cars. They tried to tie seat warming to subscriptions, so it sounds like they do and can have periodic phone home protocols.
I'm still very skeptical. I don't like the idea of my car always being online and this feels like a small crack that can lead to such a conclusion
The analogy is only to help illustrate how amateurish the factual allegations of these particular complaints really are. It might be helpful to focus more on the someone who is NOT a party to the...
The analogy is only to help illustrate how amateurish the factual allegations of these particular complaints really are.
It might be helpful to focus more on the someone who is NOT a party to the lawsuit you filed possibly, potentially theoretically doing something with your data and less on the minutiae of the analogy.
Maybe someone else will come along and plead sufficient facts and you know, yeah let’s wild out about invasive data collection practices then. Shout out to my homies who still have dumb televisions, there’s dozens of us!
But right now all this is a classic case of “anyone can sue anyone for anything, that doesn’t mean it’ll get past 12(b)(6.)”
I'm praying this sort of nonsense gets appealed up to the SC if needed and shot the hell down. It's outright invasion of privacy on so many levels, and it's exactly the kind of thing that will...
I'm praying this sort of nonsense gets appealed up to the SC if needed and shot the hell down. It's outright invasion of privacy on so many levels, and it's exactly the kind of thing that will magically not apply to anyone rich or powerful while screwing over the lives of the average person or anyone who they want to target.
We have a 4th amendment specifically to stop this kind of nonsense, and that's before you get into someone decided to share your personal conversations, passwords, or whatever else.
I take no position on anything you’ve written but would like to point out that: the 4th Amendment imposes limits on government action not private action so it isn’t relevant if the 4th Amendment...
I take no position on anything you’ve written but would like to point out that:
the 4th Amendment imposes limits on government action not private action so it isn’t relevant
if the 4th Amendment were relevant, the jurisprudence on expectation of privacy when someone shares different types of records with a 3rd party, like a phone company or bank, is relatively settled. SeeThird-Party Doctrine.
Without taking a strong position on this myself, Seems kind of hazy here as I certainly wasn’t aware that I was giving any such data to a third party. I’m sure it is buried in the terms and...
Without taking a strong position on this myself,
people who voluntarily give information to third parties
Seems kind of hazy here as I certainly wasn’t aware that I was giving any such data to a third party. I’m sure it is buried in the terms and conditions somewhere but I don’t like it.
Oh, yeah. There’s a lot to not like about it but…well it’s the law at this point. To be clear, “expectation of privacy” is limited to 4th amendment applications and government action. It’s a silly...
Oh, yeah. There’s a lot to not like about it but…well it’s the law at this point.
To be clear, “expectation of privacy” is limited to 4th amendment applications and government action.
It’s a silly example, but you know those grocery store loyalty cards? You have no expectation of privacy, from the government’s perspective as relates to the 4th Amendment. No need for a warrant for them to get detailed records from Kroger’s about your dietary habits.
While i'm aware the 4th amendment is for the government only, it sorta looks like a joke when they can say "oh we didn't invade YOUR privacy. We just requested everything you ever did from this...
While i'm aware the 4th amendment is for the government only, it sorta looks like a joke when they can say "oh we didn't invade YOUR privacy. We just requested everything you ever did from this company which did it first."
If you want a wiretap you need a warrant showing probable cause. Want to get a shitload of data from a company? Oh that's just a court order, no probable cause needed. Just so happens to be as detailed if not more than a wiretap.
And yeah I think Third Party Doctrine is going to need to be looked at again in a digital age where we've basically used monopoly and convince factors to lock in signing away your rights while private entities collect literally everything they can, tie it to your personal info, and then give it out whenever they want.
It is a little silly isn’t it. And there was the scandal about a government agency buying detailed location data from data brokers to target members of a religious minority in the US. I think...
It is a little silly isn’t it. And there was the scandal about a government agency buying detailed location data from data brokers to target members of a religious minority in the US.
I think Carpenter v. United States was a positive sign, but I’m not confident we’ll see settled types of data revisited, e.g. bank account records, even if the volume and granularity of data is significantly different than it was 10, 20, or 50 years ago.
Judges are not lawmakers; their role is to interpret and apply existing laws. They can establish precedent through their rulings, which can guide future legal interpretations and decisions. Sounds...
Judges are not lawmakers; their role is to interpret and apply existing laws. They can establish precedent through their rulings, which can guide future legal interpretations and decisions.
Sounds like the laws need to change. This clearly violates expectations of privacy.
I know you know this, but because I like talking about it - this is sort of true. Statutorily of course it's correct, but because america uses a common law system in which decisions are made on...
Judges are not lawmakers
I know you know this, but because I like talking about it - this is sort of true. Statutorily of course it's correct, but because america uses a common law system in which decisions are made on the basis of prior decisions - that is to say, taking précédent into account - judges are sort of lawmakers. Each novel decision influences all future cases touching on that subject. And look at Roe v Wade and the impact that had. But, of course, to use the same example, Roe also shows us the limits on the power of the judiciary and the danger of allowing court decisions to sort of de facto replace law.
Our family has 5 cars and they're all between 2005 - 2008. I don't want a computer logging everything I do and say in my vehicle. There should be a sense of privacy in your home and vehicle, but...
Our family has 5 cars and they're all between 2005 - 2008. I don't want a computer logging everything I do and say in my vehicle. There should be a sense of privacy in your home and vehicle, but that's not the case now.
Almost certainly it's the native infotainment system via Bluetooth. Most infotainment systems in 2014 and newer cars I've seen have tools to display or read texts to the driver with or without...
Almost certainly it's the native infotainment system via Bluetooth. Most infotainment systems in 2014 and newer cars I've seen have tools to display or read texts to the driver with or without android auto open.
Grateful that my car doesn't have this feature, but it doesn't necessarily mean it isn't logging text data via Bluetooth... I wonder now...
Sounds like this is here to stay until one of these Matt Gaetz type legislators get busted by cops texting his underage hookers from the car logs.
So I'm just an electrical engineer and thus in no way qualified to speak to the legal merits of this case. It sounds to me as though the plaintiffs are alleging, without evidence(?), that their...
So I'm just an electrical engineer and thus in no way qualified to speak to the legal merits of this case. It sounds to me as though the plaintiffs are alleging, without evidence(?), that their vehicles are storing their data.
Now, I didn't design any of these infotainment systems, so I couldn't tell you exactly how data is retained. On the other hand, they're...infotainment systems. Like, receiving and transmitting data is literally their entire purpose. If you authorize your car to display your text messages on the screen, how might you presume it's doing that? Telepathy?
If you don't want your electronic device to do the thing it was designed to do, maybe just...don't use it? I'm not a huge fan of infotainment screens myself so I wouldn't blame anyone for that. I'm just not seeing how you go from "it needs to store some of your data in order to function" straight to "they're selling my secrets to [evil megacorps/hackers/my ex wife/the illuminati]."
I'm saying this as someone who has relatively little internet presence these days due to concerns over private data harvesting. There are real problems to get upset over. This ain't it.
That only made me feel that my concerns were being dismissed without much effort. I know that there are worse things out there going on, I don't need to be told that. People can be worried about...
There are real problems to get upset over. This ain't it.
That only made me feel that my concerns were being dismissed without much effort. I know that there are worse things out there going on, I don't need to be told that. People can be worried about multiple things at a time, and for now I'm (still) worried about this one. But I have ADHD, so I just tend to hop from one issue to another quite often (though I usually don't post - I just comment). But for people who are highly anxious and hyperaware of any and all data collection and corruption going on around them, things like this are a real problem (if we're assuming the companies are actually doing this, that is), and they're very upsetting to hear about. So I felt I had to post it to see what others thought, and I hoped someone would end up saying something that reassured me. I don't fully understand the legal jargon that kovboydan commented, but it did sound reassuring.
I'm just not seeing how you go from "it needs to store some of your data in order to function" straight to "they're selling my secrets to [evil megacorps/hackers/my ex wife/the illuminati]."
This is not what I said, nor is this on par with what I said. Unless you meant "you" as in the plaintiffs/general populace. In which case, ignore this.
maybe just...don't use it?
how might you presume it's doing that? Telepathy?
I know there's no way for you to have known this, so please don't see this as if I'm scolding you or something. I only ask that you don't use sarcasm with me because, at least in my mind, it comes off as disrespectful and then makes me stressed out when I see new notifications. Again, ofc there's no way for you to have known all that beforehand, I'm just saying that - going forward - I'd like to just be talked to normally. Otherwise I can't and won't participate in the conversation (literally doctor's orders after hearing about my stress from Reddit interactions/posts).
Random side speculation courtesy of my ADHD tho: If cars did have telepathy, do you think people would think that's cool or do you think it would be shunned? As in, the car could talk to some sort of part of your mind and "teach" you the directions instead of reading them to you. I'm gonna be boring and guess it'd be probably some sort of gray area like how political people are viewed differently depending on who you ask. Ofc my pessimistic mind is saying "it would probably be capitalized garbage that just sends adverts to your brain." Which, given the direction society seems to be going in terms of tech vs consumer, that would seem likely.
But besides all that...
To be fair, I'm not exactly tech savvy, despite being a millennial. I'm not car savvy (I'm a woman so I was not raised to care or learn about cars). Hell, I'm not even law savvy. But to me, the idea/claim that a car is not just transmitting data to be displayed, but rather that it does that but also stores it after it's done using it? No thank you! I have questions I wish I could ask those car company CEOs such as: why would the car gain access to call logs? Because a phone call is just a phone call, so it's not supposed to be saved for later so that you can "re-hear" it (unless I vastly misunderstood the plaintiff's complaint). Texts, I understand that they'd need to be stored at least for a little while. But I text my doctor things about my health that I wouldn't want going into someone else's hands without me knowing it and I'm sure many others do too, even people who might need that text feature on the car. My brother for example, drives a lot (real estate agent) and he might get calls or texts he would need to respond to from clients during work hours. I'm not sure if these car companies have a set of rules in some ToS included in the car deal when you purchase it that gives them permission for this, but it definitely wouldn't surprise me.
I know that you said you don't know exactly how the data is retained. But that is something that I would've liked to learn - is the car taking the text data even when you don't set the infotainment system to display text messages? So in other words, can/does it take all the info on the phone and await activation of the text display feature to use that data, or does it only take what I'm telling it to use, like say, Pandora's music streaming info? I'm not clear on this part of the whole issue (please tell me if you find/found out, as I'm sure there are other articles about this that I haven't read). I'm not sure I can even do that on mine. But mine is a Mini Cooper, which is produced by BMW, which is not one of the companies in this article. So I have no idea if mine does this data collection or not. But I do need to hook up my phone to my car's speakers since I have a bit of a hearing problem. Which means I need more volume than my phone can muster just to hear my directions clearly from Google maps. And I rely on the directions because of severe driving anxiety (that I am trying to treat but other things are getting in the way atm) that gives me palpitations if I don't have directions helping me.
But what I'm wanting to discuss (and maybe inspire more of?) is that people are becoming increasingly aware about their usage data being collected, sold, used to sell adverts, or to profile you, etc. (But you seem to know this already as you stated that you already have concerns over private data harvesting, so I might be preaching to the choir here). Either way, you're right in that it does make sense that the car needs to at least temporarily hold on to your text logs to display them, and I thought about that. But I also figured the plaintiffs in this case knew something about the tech that I didn't. And that would be the part I'm worried about/interested in. What did they learn that I didn't glean from the article? Another thing is I feel that people are becoming increasingly untrusting of the courts and other authority figures/groups in the USA. I sure have. I used to trust judges and police officers when I was young, but now it just seems like everything that authority and big money touches gets corrupted, and ruins our lives. Things are looking increasingly bleak. But yeah, I'm really questioning if this was the right article on which to bring this topic up, though. Maybe not.
I can answer something concrete for you with no legal mumbo jumbo. They - the Plaintiffs - don’t know anything that you don’t and didn’t learn anything. They don’t know anything about the tech...
I can answer something concrete for you with no legal mumbo jumbo.
But I also figured the plaintiffs in this case knew something about the tech that I didn't. And that would be the part I'm worried about/interested in. What did they learn that I didn't glean from the article?
They - the Plaintiffs - don’t know anything that you don’t and didn’t learn anything.
They don’t know anything about the tech (and it seems at least one plaintiff doesn’t even know which car they own.)
They essentially filed a lawsuit based on:
random articles on random websites and
some statements made by a forensic tech company about being able to hack various infotainment systems for law enforcement.
Ahh okay. That's such a relief. Thank you for clarifying. I shouldn't be so pessimistic, but.. force of habit and all. Usually when I read law related things, the second I get to a word or phrase...
Ahh okay. That's such a relief. Thank you for clarifying. I shouldn't be so pessimistic, but.. force of habit and all. Usually when I read law related things, the second I get to a word or phrase (or sometimes a whole sentence) that doesn't make sense to me my mind wanders (wonder what that phrase means... maybe it means ＿... where else have I seen this phrase...), and then the rest of the article tends to be absorbed to a lesser extent due to my distracted mind. But yeah, I'm glad this whole thing was a nothing-burger after all.
So, on tildes, would I be expected to delete this post since the title of the article is misleading, or do I need to leave it up so that others won't post the same thing, thinking it's a new subject to discuss? Btw when this post was moved from ~tech to ~travel, the title was changed from whatever I had put (and I don't remember if I had the original article title in it, but I probably did) to just the name of the article. Idk who was able to do that but maybe they can add a disclaimer in parenthesis? Just so people don't read the title and freak out. But if I figure out how to do it myself, I will.
And hey, thanks for the info here and also in your other comments, even if I didn't understand much of it, lol. It seems others understood well enough. Are you a lawyer by chance? Because you seem like you really know this stuff.
99% of the comments here were friendly, well intentioned, and contributed to good discussions on the law and privacy. If the post was deleted other people wouldn’t have an opportunity to see those...
99% of the comments here were friendly, well intentioned, and contributed to good discussions on the law and privacy.
If the post was deleted other people wouldn’t have an opportunity to see those conversations, participate in them, or learn from them?
I changed the title again to inform people that this article is potentially misleading, as requested, @Oslypsis. I think that, and the top comment by @kovboydan effectively addresses the issues...
I changed the title again to inform people that this article is potentially misleading, as requested, @Oslypsis. I think that, and the top comment by @kovboydan effectively addresses the issues with the article and should be sufficient, so there is probably no need to delete the topic.
p.s. To see who has edited what in a topic, you can look in the sidebar on the top right, under "Topic log" (click to expand it). And if you do that, you can see that I was the person who changed your originally submitted title from "Court rules that automakers can record & intercept owner text messages & call logs, & they give law enforcement access to this data with no need for a warrant, but not you" to the official article headline of "Court rules automakers can record and intercept owner text messages".
The reason I did that was because I felt your title was overly editorialized, hard to read, and also potentially inaccurate, since there was no mention of law enforcement being able to access the data without warrants anywhere in the article.
Oof. I think this came off to you the wrong way. I replied at the top level because I'm seeing a lot of dooming in here and no one with technical expertise had weighed in (I didn't mention my...
Oof. I think this came off to you the wrong way. I replied at the top level because I'm seeing a lot of dooming in here and no one with technical expertise had weighed in (I didn't mention my skillset in my initial comment to stroke my ego lol). My comment was not directed at you personally, I just wanted the visibility. I also wasn't being intentionally sarcastic. I'm naturally snarky, and it shouldn't be taken as containing any venom. I have ADHD as well, and it plays hell with my perceptions of people's intentions sometimes, so I understand. Sorry for the miscommunication.
First, as I said, I sympathize with the sentiment generally, but as kovboydan said, this isn't the best example of the problem. Let me be clear on something: That's not your fault. The article is written with a very emotional slant and is designed to get precisely the reaction you had, and it appears to have worked on almost everyone else in this discussion as well. That's why I hate it. It's manipulative.
To your question about telepathic cars, etc... It's gonna happen. Soon. My field requires me to watch the horizon, so I can tell you there's no way it isn't coming. I've had my eye on jobs in the area, in fact. I've even done a little bit of work on a bionics research project. I'm something of a tech optimist, so I might be the wrong person to ask. It's been my experience that these things usually aren't as bad as you might expect. If I get the opportunity, I'll do what I can to help.
Shifting back to the main point of discussion, and again as noted elsewhere, there isn't anything in the complaints to suggest the plaintiffs have evidence the data is being stored in a form that could be used for nefarious purposes. But, yeah, your intuition is right, they have to store stuff. What stuff? How much stuff? Bad stuff? It...depends. Mostly on how lazy the programmer was. To explain without getting really into the weeds with infosec: your data leaves a trace everywhere it goes, so there's always a chance of something getting left someplace you don't want it. That's how lots of data breaches happen. It's how private photos end up on the internet after they were deleted. The only way to avoid this would be to constantly overwrite everything with zeros once it's no longer needed, and that just isn't practical. It would slow all computing down to a crawl and wear storage hardware out much faster than it already does. There are ways to do this for sensitive information, but outside of corporate and government secrets, it isn't done much. Last I heard, the Feds found it easier to just toss their drives into an industrial shredder when they were done with them.
As to the politics of this stuff... I'm not sure if it's any comfort or not, but corruption (especially government corruption) is actually far, far lower than when we millennials were kids. The internet shined a spotlight on it, and lots of heads rolled. It's just that the spotlight keeps getting brighter, so you see it more. It's selection bias. Like going into the forest and kicking over logs. You're going to find gross stuff if you go looking for it. Try not to let it drive you crazy or smother your faith in humanity.
Ah phew okay. I was worried I would get a bad response from that. Thanks for understanding! Honestly, this interaction has reaffirmed my trust in tildes users. I kinda feel dumb for falling for...
Ah phew okay. I was worried I would get a bad response from that. Thanks for understanding! Honestly, this interaction has reaffirmed my trust in tildes users.
I kinda feel dumb for falling for that article, because I am often aware of how manipulative headlines are and how things can be worded to persuade with emotions rather than facts. But I guess I just have to accept that I'm not perfect.
On another note about the telepathic cars, would I be hitting into the right ballpark by guessing it might be that the telepathy part will drive the self driving cars, so the company wont have to take responsibility for ethical errors in tough situations (like choosing between killing the driver or a pedestrian for example)? Or were you actually just meaning that cars will send data to us, rather than thr other way around?
I wonder if some genius tech person will come up with a way to transfer data in a whole new way that cant be traced. As in, no more ones and zeros kind of way. Its nice to dream lol.
Last I heard, the Feds found it easier to just toss their drives into an industrial shredder when they were done with them.
I understand the necessity for this but I also wonder how much this contributes to pollution. Ofc there are far worse things causing pollution that need to be fixed.
and lots of heads rolled.
I may have been too young to remember this part. If I'm not mistaken I'm at the younger end of the millennial group. But yes, you're completely right that it's just the spotlight effect. "Seek and ye shall find" I suppose. I've been trying to work on my cognitive distortions for years now. Though that has been for specific circumstances unrelated to this particular subject, so I wasn't in that "think twice before you feel" kind of mindset. But again, I just have to accept I'm not perfect and I will probably fall victim to the distortions at least every now and then. Thank you for reminding me and I apologize for my misunderstanding of your comment.
Brain-machine interfaces could make so many new things possible that it's hard to predict what will come out the other side. Typing with your brain has been a (clunky) thing for many years, so I...
Brain-machine interfaces could make so many new things possible that it's hard to predict what will come out the other side. Typing with your brain has been a (clunky) thing for many years, so I would expect more of that to start. Sending and receiving messages with an implant instead of texting might at least be a little safer to do while driving.
I understand the necessity for this but I also wonder how much this contributes to pollution. Ofc there are far worse things causing pollution that need to be fixed.
It isn't great. Not sure how it stacks against the mountains of paper waste they were incinerating before. Can't imagine it's much better if at all.
I kinda feel dumb for falling for that article
People build entire careers on outrage-baiting and agenda-pushing. Having to constantly match that level of practice with your own is exhausting. Trying to balance that against being unreasonably cynical and skeptical isn't fun either. The fact that you didn't just dig in harder already puts you a cut above most people in these kinds of discussions, so maybe give yourself a little grace here.
I apologize for my misunderstanding of your comment.
No worries, it was at least partly my fault. The balance between "relax, I know what I'm talking about" and "insufferable jackass" is sometimes tough to strike. I may have fallen off the tightrope on this one.
Not who you replied to and this isn't my field, but there are some questions that should be raised. Telephone companies have strict legal limits on how they store and use communication data. The...
Not who you replied to and this isn't my field, but there are some questions that should be raised.
Telephone companies have strict legal limits on how they store and use communication data.
The fact that professionals who are obligated to protect confidential information such as doctors and lawyers use emails and texts suggests that internet providers do as well.
Are these car companies bound by similar laws regulating communication, or is this a loophole that could cause medical professionals to violate the law or attorneys to violate professional ethics just because they are in a car while answering a text?
The legalities aren't my area at all either, so I would be guessing on that. My hope would be that if a service compromises someone else's confirmation agreement, they'd be the ones on the hook....
The legalities aren't my area at all either, so I would be guessing on that. My hope would be that if a service compromises someone else's confirmation agreement, they'd be the ones on the hook.
The technical reality may differ from the design specs, much less the law, in defiance of anyone's best expectations. Most engineers barely understand what the hell is going on inside these machines, and that's not a dig at the engineers. There's a lot more "hope for the best" going on than either you or I would like.
I am a lawyer, but not a communications lawyer. I am not thrilled by the sensationalism of the article, but if car companies are storing texts and lists of calls, they should be subject to similar...
I am a lawyer, but not a communications lawyer.
I am not thrilled by the sensationalism of the article, but if car companies are storing texts and lists of calls, they should be subject to similar rules as phone companies.
I’m also not a communications lawyer. Based on the complaints the car companies aren’t alleged to be doing anything with the data, it’s just alleged the data is stored to the infotainment system....
I’m also not a communications lawyer.
Based on the complaints the car companies aren’t alleged to be doing anything with the data, it’s just alleged the data is stored to the infotainment system. So I guess I’d just treat it like any other electronic device that I do work on as far as complying with professional rules is concerned?
But I guess if we’re curious we could ask for advisory opinions from our state bars?
At least there are people here who can refute the sensationalism. I would hope the regs are the same too. It sounds like the more likely vulnerability would be information sitting in RAM for an...
At least there are people here who can refute the sensationalism.
I would hope the regs are the same too. It sounds like the more likely vulnerability would be information sitting in RAM for an extended period. Your phone has that same vulnerability and is much easier to hack into than your car.
Crony Capitalism (as an ideology) reflects in such plain and blunt manner in the vast majority of these American court decisions. This is indeed quite worrying as US is the world's leading super...
Crony Capitalism (as an ideology) reflects in such plain and blunt manner in the vast majority of these American court decisions. This is indeed quite worrying as US is the world's leading super power and everyone else typically follow the US instead of making them follow in such policy decisions.
You made this comment well after all the others explaining that this wasn't a decision but instead tossing out a case based on the fact that the plaintiffs didn't even demonstrate how they were...
You made this comment well after all the others explaining that this wasn't a decision but instead tossing out a case based on the fact that the plaintiffs didn't even demonstrate how they were harmed.
I’d welcome more information as well. Perhaps there’s something left to be explained? But since this conversation has been started I’ll presumptively address the portion of the comment about...
I’d welcome more information as well. Perhaps there’s something left to be explained?
But since this conversation has been started I’ll presumptively address the portion of the comment about following bad policy decisions.
One thing I haven’t mentioned elsewhere:
The court of appeals decision linked in the article is “not precedent except as provided by Ninth Circuit Rule 36-3.”
If anyone is curious and wants to confirm that for themself, they can look at the top of pg. 1 and the footnote on pg. 1. And if anyone wants to read more about Ninth Circuit Rule 36-3 or the hierarchy of legal citations - most simply binding authority v. persuasive authority - I hope they’ll feel empowered to look into it.
Even courts in the 9th Circuit won’t be obliged to consider this decision when making future ones, must less follow it. So I’m not sure how this could be seen as a policy decision much less a decision with potentially global implications.
Yes, unpublished opinions can be cited as persuasive authority and if so would probably be attached to a filing and/or sent as a courtesy copy to chambers. But citing unpublished opinions is … never a first choice.
With that said, I could only imagine citing this particular decision for the notion that you can file copy and pasted complaints without being sanctioned.^
Oh no, I didn't even read what the other commenters had written. My comment was entirely generalized based purely on the general state of affairs in the world and probably induced by my perception...
Oh no, I didn't even read what the other commenters had written. My comment was entirely generalized based purely on the general state of affairs in the world and probably induced by my perception of the ongoing global recession and its effect on my own life and career. Due apologies in case I unwittingly hurt your nationalistic sentiments in anyway.
Accurate Headline: Court Affirms Dismissal Based on Failure to State a Claim
No, the 9th Circuit Court of Appeals did not rule that “automakers can record and intercept owner text messages.” The 9th Circuit Court of Appeals affirmed the district court’s dismissal under Rule 12(b)(6), which is dismissal for “failure to state a claim upon which relief can be granted.”
Order Affirming at p. 2
Timing of 12(b)(6) Motions to Dismiss
Stepping back for just a second to emphasize how early in the process these cases were.
The timeline in this case is:
So, it’s been more than 2 years since this case was filed, but this was dismissed so early in the process that Defendants hadn’t even responded to the Plaintiffs' claims. 12(b) motions “must be made before ... a responsive pleading.” If you opened the Rule 12(b)(6) link above, or happen to known rules of civil procedure, you’ll see that Rule 12(a) on that same page is the rule about “Time to Serve a Responsive Pleading.”
It doesn’t get much earlier in the process than a 12(b) motion.
Basis of 12(b)(6) Motions to Dismiss
Motions to dismiss under 12(b)(6) can be based on either (1) the lack of a cognizable legal theory or (2) the absence of sufficient facts alleged under a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
Here, there was a cognizable legal theory. The alleged cognizable legal theory was a violation of the Washington Privacy Act enforceable by private civil action under WASH. REV. CODE § 9.73.060. But the facts were not sufficiently alleged under that cognizable legal theory.
Standard of Review
When courts consider 12(b)(6) motions to dismiss:
Pleading standards aren’t meant to be burdensome.
The discovery process hasn’t taken place. And pleadings don’t need to allege facts sufficient to convince a finder of fact of defendant’s liability based on the preponderance of the evidence: there is no evidence at this point. There is ONLY the complaint. If you want to read more on discovery head over to FRCP Rule 26-37.
So…if everything in the complaint is construed - taken - in the plaintiff’s favor, how do we know what “sufficient facts” alleged looks like?
Well…to start:
So plaintiff needs their complaint to have:
That’s helpful, but…some more guidance on this would be helpful.
So we’re looking for factual allegations that get us above speculation assuming that all the allegations in the complaint are true. That’s helpful and consistent with the standard in Keniston that says the complaint should be construed in favor of the plaintiff.
Great, so we’re looking for plausible but we don’t need to hit probable. We need more than labels and conclusions. And we need more than formulaic recitations of the...elements of a cause of action.
See Twiqbal for more on the heightening of the pleading standard under the Federal Rules of Civil Procedure.
Elements of a Cause of Action
This one is straightforward:
In this case it’s a statute, the WPA.
The Washington State Privacy Act prohibits:
So, plaintiff should allege sufficient facts to make 1, 2, and 3 seem plausible.
What Happened?
Plaintiff didn’t allege an injury. That’s what happened.
Plaintiff alleged a hypothetical, possible injury. And that injury is predicated on an unrelated third-party company hacking their infotainment system with specialized hardware and software. The district court - not unexpectedly - concluded that this speculative injury is not an injury in fact and granted dismissal.
The 9th Circuit Court of Appeals - not unexpectedly - agreed with the district court that a speculative injury is not an injury in fact and affirmed.
Now, you might be thinking… why didn’t the plaintiffs sue Berla? Well, because until Berla does something there can be no injury there either.
Other Highlights
The author of linked article “is a reporter covering privacy, disinformation and cybersecurity policy for The Record.” Let’s go with Hanlon’s Razor - or something - because everything from the title to final period was at best misinformed.
As far as I could tell from reviewing the filings, none of the plaintiffs in any of the cases actually alleged that the automakers accessed, used, or transmitted any of the information stored in the infotainment system. All they alleged was that the infotainment system stored copies of the data and that Berla could theoretically hack it. Berla is that unrelated third-party.
The Plaintiff in the Honda case never even alleged which model Honda he owns. Or if it was a Honda. Oh, and he also alleged it was a 2015 model in one complaint and a 2021 model in another. I forget which was in the original and which was in the amended complaints.
You can find all of this information for yourself at https://www.courtlistener.com/ if you search by attorney: “Joel B Ard”
The 4th Amendment does not matter here. Here’s a helpful Fourth Amendment Flowchart from lawcomic.net.
While your post makes an excellent cle outline on dismissals, it still begs the question the implications of the result.
One of the most distressing implications is that there is no cause of action against automakers for slurping your text messages. “No cause of action” means it’s not illegal.
The bill of rights was a solution to the government doing this type of thing. At the time they were written, it never occurred to most people that private corporations would assume the magnitude of governments in terms of power, reach, and influence on individual and collective lives.
I don’t know whether i believe the court got their ruling correct (and my opinion is irrelevant), but either way we the people should be alarmed.
What are the implications?
Well, I think the main implication could be summed up as:
This decision wasn’t about privacy or data collection. It was a run of the mill 12(b)(6) decision.
No one should be any more alarmed about privacy issues than they were before they saw this headline and misinformed article.
The article linked here bordered on disinformation. Arstechnica’s coverage of it wasn’t quite as bad but did contain copy that was inflammatory and misguided.
The implication is that the taking and interception of text messages is itself not an injury. I am not surprised to learn that judges don’t consider that illegal, but I am alarmed and sadden, and so should be anyone who cares about this sort of thing.
How is a system which is designed to display information from another device meant to do so without accessing that information? Because absent any evidence to the contrary (which has not been provided), that's all these machines are doing.
Are they meant to slurp all my texts? My car only announces the phone number of an incoming call. I’d be quite unhappy if it was accessing anything else.
Again, the plaintiffs in this case never offered any evidence actual data collection was happening beyond what was necessary. Some cars will read your texts to you while you're driving, so I would expect them to need access to the content of the messages for that.
I'm not saying it wouldn't be bad if they were doing what you suggest, only that I can't say whether they are based on what's provided here.
What I am saying is: This article is tilting at windmills.
You don’t need to offer evidence to survive a 12(b) (6), but assuming you meant they never made the allegation, and assuming also that’s true, i’m forced to agree that I’m arguing over nothing. I thought they did make that allegation, my apologies if I misunderstood.
Yeah I meant "evidence" in the colloquial sense, not the legal one. Anyway, the article is written so you'll come to the conclusion you did. It's pretty light on journalistic integrity. That's why I'm in here railing against it like I am. More trying to debunk than argue.
Hopefully at least a couple of people will sleep a little better knowing their car probably isn't trying to invade their privacy.
Who was harmed? How were they injured?
It's of course valid to be concerned about what might happen. I can imagine ways that copying some text messages might betray a secret and harm someone. And a result of this case, I do wonder about how this car is designed. What vulnerabilities are there? Security professionals are paid to be paranoid about such things.
But often, no harm is done, even on insecure systems. A door might be left unlocked, but fortunately nobody tried opening it. The password was insecure, but nobody guessed it. Maybe some data was copied somewhere it shouldn't have been, but nobody noticed.
Until something bad actually happens, we have to speculate about what might have been, and apparently you can't sue over that sort of thing.
(It would be different, though, if the car manufacturer made a promise and didn't keep it.)
In other contexts, mere exposure to risk is sufficient (legal) injury to sustain a cause of action. Advertising cigarettes to children comes to mind. In criminal law, any unwanted touch, however slight, or however lacking in change to the condition of my body, is battery. In my mind, copying my texts without permission is well beyond a mere brush on my arm.
The statutory law here may not include exposure as an injury. My exhortation is that this is wrong-merely copying my texts is an injury, a violation of my informational integrity, and should be enough to sustain a cause.
Not exactly, though?
Under this particular law in this particular state as it currently exists, to maintain a private civil action there must be an actual injury in addition to conduct that violates the statue.
Maybe we could agree to this being the implication:
Thanks for this. Even though I doubt most articles I read because journalism nowadays is more about "clicks" and narratives than the truth, there are times I get duped, and don't have the time to research the facts.
Lawsuit document: https://www.documentcloud.org/documents/24133084-22-35448
From article:
Well this is disturbing to say the least. Surely there is a market for those of us who want "dumb" tech, including car related products. Also, my anxiety disorder would go NUTS with this, so personally, I'd argue there IS harm done to the consumer. But ofc I'm not a lawyer, so I don't know if that argument would have any merit.
Hopefully at least one of these will end in favor of the consumer. When will we get rights to our own data? I'm no longer connecting my phone to my car. I have a 2015 Mini Cooper, so I'm guessing my car falls within this lawsuit's ruling, although the article states that the defendants are Honda, Toyota, Volkswagen and General Motors, and Mini is owned by BMW. So maybe I'm safe. Not sure.
What do y'all think about this news?
I don't understand this ruling. Your private messages, on your private device, likely only played with you alone in the car and somehow there's no potential to damage reputation?! Like, if your significant other likes to call you Daddy or something, Honda can just keep a copy of that forever?
To quote, and paraphrase, a line from Lock, Stock, and Two Smoking Barrels "Because who wants their
bank managerCar Dealer to know theytickle assesget called Daddy when they're not paying theircheckscar note."Someone should've told this judge he can never discuss legal business in the car anymore because he's leaking sensitive case materials to Honda corporate and see how fast he changes his tune.
That’s the least of it. You could have telehealth appointments with clinicians or a therapist. You could have conversations with your sponsor from an addiction recovery program. You could be discussing things with your lawyer that are covered under attorney client privilege.
As for not understanding the ruling: that wasn’t the ruling.
The “ruling” was the plaintiffs failed to state a claim upon which relief could be granted. No evidence was presented. No discovery was undertaken. These were complaints a 1L would be embarrassed to submit in their legal writing class.
And as a fun hypothetical, if the things you’re discussing are covered under attorney client privilege, you’re likely to have a good argument that the evidence should be excluded. The argument would be it’s analogous to having a conversation with your attorney by email/text and not analogous to having a conversation with your attorney in an elevator with other people around. And don’t forget, if you’re concerned about government action in violation of the 4th Amendment: the ONLY remedy is the exclusion of evidence.
Only after our data ceases to be capital
Maybe this will help you chill out about it. None of the plaintiffs alleged the automakers did anything with the data.
They alleged that there’s a copy of it on the infotainment system and that a third-party could hack it with specialized hardware and software.
It would be like filing a lawsuit against Sandisk because someone could theoretically access the data you put on the Sandisk sd card that you bought. But Sandisk didn’t do anything with the data on your sd card after you bought it.
I also want to emphasize that these are allegations not proven facts and that the allegations were so deficient that the cases got tossed out literally as fast as possible.
An SD card isn't online, and companies can't just grab and read hard drive data. I'm much less sure about that assertion when it comes to modern day cars. They tried to tie seat warming to subscriptions, so it sounds like they do and can have periodic phone home protocols.
I'm still very skeptical. I don't like the idea of my car always being online and this feels like a small crack that can lead to such a conclusion
The analogy is only to help illustrate how amateurish the factual allegations of these particular complaints really are.
It might be helpful to focus more on the someone who is NOT a party to the lawsuit you filed possibly, potentially theoretically doing something with your data and less on the minutiae of the analogy.
Maybe someone else will come along and plead sufficient facts and you know, yeah let’s wild out about invasive data collection practices then. Shout out to my homies who still have dumb televisions, there’s dozens of us!
But right now all this is a classic case of “anyone can sue anyone for anything, that doesn’t mean it’ll get past 12(b)(6.)”
I'm praying this sort of nonsense gets appealed up to the SC if needed and shot the hell down. It's outright invasion of privacy on so many levels, and it's exactly the kind of thing that will magically not apply to anyone rich or powerful while screwing over the lives of the average person or anyone who they want to target.
We have a 4th amendment specifically to stop this kind of nonsense, and that's before you get into someone decided to share your personal conversations, passwords, or whatever else.
I take no position on anything you’ve written but would like to point out that:
Without taking a strong position on this myself,
Seems kind of hazy here as I certainly wasn’t aware that I was giving any such data to a third party. I’m sure it is buried in the terms and conditions somewhere but I don’t like it.
Oh, yeah. There’s a lot to not like about it but…well it’s the law at this point.
To be clear, “expectation of privacy” is limited to 4th amendment applications and government action.
It’s a silly example, but you know those grocery store loyalty cards? You have no expectation of privacy, from the government’s perspective as relates to the 4th Amendment. No need for a warrant for them to get detailed records from Kroger’s about your dietary habits.
While i'm aware the 4th amendment is for the government only, it sorta looks like a joke when they can say "oh we didn't invade YOUR privacy. We just requested everything you ever did from this company which did it first."
If you want a wiretap you need a warrant showing probable cause. Want to get a shitload of data from a company? Oh that's just a court order, no probable cause needed. Just so happens to be as detailed if not more than a wiretap.
And yeah I think Third Party Doctrine is going to need to be looked at again in a digital age where we've basically used monopoly and convince factors to lock in signing away your rights while private entities collect literally everything they can, tie it to your personal info, and then give it out whenever they want.
It is a little silly isn’t it. And there was the scandal about a government agency buying detailed location data from data brokers to target members of a religious minority in the US.
I think Carpenter v. United States was a positive sign, but I’m not confident we’ll see settled types of data revisited, e.g. bank account records, even if the volume and granularity of data is significantly different than it was 10, 20, or 50 years ago.
Yet again I am reminded that I truly don't want a car that connects to the Internet. So far so good with my pre 2005 weekly driver.
Judges are not lawmakers; their role is to interpret and apply existing laws. They can establish precedent through their rulings, which can guide future legal interpretations and decisions.
Sounds like the laws need to change. This clearly violates expectations of privacy.
I know you know this, but because I like talking about it - this is sort of true. Statutorily of course it's correct, but because america uses a common law system in which decisions are made on the basis of prior decisions - that is to say, taking précédent into account - judges are sort of lawmakers. Each novel decision influences all future cases touching on that subject. And look at Roe v Wade and the impact that had. But, of course, to use the same example, Roe also shows us the limits on the power of the judiciary and the danger of allowing court decisions to sort of de facto replace law.
Our family has 5 cars and they're all between 2005 - 2008. I don't want a computer logging everything I do and say in my vehicle. There should be a sense of privacy in your home and vehicle, but that's not the case now.
My question: When does this apply, technically speaking? When connected by cable? Apple CarPlay / Android Auto? Bluetooth?
I assumed usb and usb-c. But yeah, maybe stuff like bluetooth too.
Almost certainly it's the native infotainment system via Bluetooth. Most infotainment systems in 2014 and newer cars I've seen have tools to display or read texts to the driver with or without android auto open.
Grateful that my car doesn't have this feature, but it doesn't necessarily mean it isn't logging text data via Bluetooth... I wonder now...
Sounds like this is here to stay until one of these Matt Gaetz type legislators get busted by cops texting his underage hookers from the car logs.
So I'm just an electrical engineer and thus in no way qualified to speak to the legal merits of this case. It sounds to me as though the plaintiffs are alleging, without evidence(?), that their vehicles are storing their data.
Now, I didn't design any of these infotainment systems, so I couldn't tell you exactly how data is retained. On the other hand, they're...infotainment systems. Like, receiving and transmitting data is literally their entire purpose. If you authorize your car to display your text messages on the screen, how might you presume it's doing that? Telepathy?
If you don't want your electronic device to do the thing it was designed to do, maybe just...don't use it? I'm not a huge fan of infotainment screens myself so I wouldn't blame anyone for that. I'm just not seeing how you go from "it needs to store some of your data in order to function" straight to "they're selling my secrets to [evil megacorps/hackers/my ex wife/the illuminati]."
I'm saying this as someone who has relatively little internet presence these days due to concerns over private data harvesting. There are real problems to get upset over. This ain't it.
That only made me feel that my concerns were being dismissed without much effort. I know that there are worse things out there going on, I don't need to be told that. People can be worried about multiple things at a time, and for now I'm (still) worried about this one. But I have ADHD, so I just tend to hop from one issue to another quite often (though I usually don't post - I just comment). But for people who are highly anxious and hyperaware of any and all data collection and corruption going on around them, things like this are a real problem (if we're assuming the companies are actually doing this, that is), and they're very upsetting to hear about. So I felt I had to post it to see what others thought, and I hoped someone would end up saying something that reassured me. I don't fully understand the legal jargon that kovboydan commented, but it did sound reassuring.
This is not what I said, nor is this on par with what I said. Unless you meant "you" as in the plaintiffs/general populace. In which case, ignore this.
I know there's no way for you to have known this, so please don't see this as if I'm scolding you or something. I only ask that you don't use sarcasm with me because, at least in my mind, it comes off as disrespectful and then makes me stressed out when I see new notifications. Again, ofc there's no way for you to have known all that beforehand, I'm just saying that - going forward - I'd like to just be talked to normally. Otherwise I can't and won't participate in the conversation (literally doctor's orders after hearing about my stress from Reddit interactions/posts).
Random side speculation courtesy of my ADHD tho: If cars did have telepathy, do you think people would think that's cool or do you think it would be shunned? As in, the car could talk to some sort of part of your mind and "teach" you the directions instead of reading them to you. I'm gonna be boring and guess it'd be probably some sort of gray area like how political people are viewed differently depending on who you ask. Ofc my pessimistic mind is saying "it would probably be capitalized garbage that just sends adverts to your brain." Which, given the direction society seems to be going in terms of tech vs consumer, that would seem likely.
But besides all that...
To be fair, I'm not exactly tech savvy, despite being a millennial. I'm not car savvy (I'm a woman so I was not raised to care or learn about cars). Hell, I'm not even law savvy. But to me, the idea/claim that a car is not just transmitting data to be displayed, but rather that it does that but also stores it after it's done using it? No thank you! I have questions I wish I could ask those car company CEOs such as: why would the car gain access to call logs? Because a phone call is just a phone call, so it's not supposed to be saved for later so that you can "re-hear" it (unless I vastly misunderstood the plaintiff's complaint). Texts, I understand that they'd need to be stored at least for a little while. But I text my doctor things about my health that I wouldn't want going into someone else's hands without me knowing it and I'm sure many others do too, even people who might need that text feature on the car. My brother for example, drives a lot (real estate agent) and he might get calls or texts he would need to respond to from clients during work hours. I'm not sure if these car companies have a set of rules in some ToS included in the car deal when you purchase it that gives them permission for this, but it definitely wouldn't surprise me.
I know that you said you don't know exactly how the data is retained. But that is something that I would've liked to learn - is the car taking the text data even when you don't set the infotainment system to display text messages? So in other words, can/does it take all the info on the phone and await activation of the text display feature to use that data, or does it only take what I'm telling it to use, like say, Pandora's music streaming info? I'm not clear on this part of the whole issue (please tell me if you find/found out, as I'm sure there are other articles about this that I haven't read). I'm not sure I can even do that on mine. But mine is a Mini Cooper, which is produced by BMW, which is not one of the companies in this article. So I have no idea if mine does this data collection or not. But I do need to hook up my phone to my car's speakers since I have a bit of a hearing problem. Which means I need more volume than my phone can muster just to hear my directions clearly from Google maps. And I rely on the directions because of severe driving anxiety (that I am trying to treat but other things are getting in the way atm) that gives me palpitations if I don't have directions helping me.
But what I'm wanting to discuss (and maybe inspire more of?) is that people are becoming increasingly aware about their usage data being collected, sold, used to sell adverts, or to profile you, etc. (But you seem to know this already as you stated that you already have concerns over private data harvesting, so I might be preaching to the choir here). Either way, you're right in that it does make sense that the car needs to at least temporarily hold on to your text logs to display them, and I thought about that. But I also figured the plaintiffs in this case knew something about the tech that I didn't. And that would be the part I'm worried about/interested in. What did they learn that I didn't glean from the article? Another thing is I feel that people are becoming increasingly untrusting of the courts and other authority figures/groups in the USA. I sure have. I used to trust judges and police officers when I was young, but now it just seems like everything that authority and big money touches gets corrupted, and ruins our lives. Things are looking increasingly bleak. But yeah, I'm really questioning if this was the right article on which to bring this topic up, though. Maybe not.
I can answer something concrete for you with no legal mumbo jumbo.
They - the Plaintiffs - don’t know anything that you don’t and didn’t learn anything.
They don’t know anything about the tech (and it seems at least one plaintiff doesn’t even know which car they own.)
They essentially filed a lawsuit based on:
Ahh okay. That's such a relief. Thank you for clarifying. I shouldn't be so pessimistic, but.. force of habit and all. Usually when I read law related things, the second I get to a word or phrase (or sometimes a whole sentence) that doesn't make sense to me my mind wanders (wonder what that phrase means... maybe it means ＿... where else have I seen this phrase...), and then the rest of the article tends to be absorbed to a lesser extent due to my distracted mind. But yeah, I'm glad this whole thing was a nothing-burger after all.
So, on tildes, would I be expected to delete this post since the title of the article is misleading, or do I need to leave it up so that others won't post the same thing, thinking it's a new subject to discuss? Btw when this post was moved from ~tech to ~travel, the title was changed from whatever I had put (and I don't remember if I had the original article title in it, but I probably did) to just the name of the article. Idk who was able to do that but maybe they can add a disclaimer in parenthesis? Just so people don't read the title and freak out. But if I figure out how to do it myself, I will.
And hey, thanks for the info here and also in your other comments, even if I didn't understand much of it, lol. It seems others understood well enough. Are you a lawyer by chance? Because you seem like you really know this stuff.
99% of the comments here were friendly, well intentioned, and contributed to good discussions on the law and privacy.
If the post was deleted other people wouldn’t have an opportunity to see those conversations, participate in them, or learn from them?
You can ask for title-editing abilities, or just ask @cfabbro to change it for you.
I changed the title again to inform people that this article is potentially misleading, as requested, @Oslypsis. I think that, and the top comment by @kovboydan effectively addresses the issues with the article and should be sufficient, so there is probably no need to delete the topic.
p.s. To see who has edited what in a topic, you can look in the sidebar on the top right, under "Topic log" (click to expand it). And if you do that, you can see that I was the person who changed your originally submitted title from "Court rules that automakers can record & intercept owner text messages & call logs, & they give law enforcement access to this data with no need for a warrant, but not you" to the official article headline of "Court rules automakers can record and intercept owner text messages".
The reason I did that was because I felt your title was overly editorialized, hard to read, and also potentially inaccurate, since there was no mention of law enforcement being able to access the data without warrants anywhere in the article.
Ah okay, ty. I must have read the law enforcement part from the place where I first saw the article.
NP. And no worries. We all get our wires crossed sometimes. :)
Oof. I think this came off to you the wrong way. I replied at the top level because I'm seeing a lot of dooming in here and no one with technical expertise had weighed in (I didn't mention my skillset in my initial comment to stroke my ego lol). My comment was not directed at you personally, I just wanted the visibility. I also wasn't being intentionally sarcastic. I'm naturally snarky, and it shouldn't be taken as containing any venom. I have ADHD as well, and it plays hell with my perceptions of people's intentions sometimes, so I understand. Sorry for the miscommunication.
First, as I said, I sympathize with the sentiment generally, but as kovboydan said, this isn't the best example of the problem. Let me be clear on something: That's not your fault. The article is written with a very emotional slant and is designed to get precisely the reaction you had, and it appears to have worked on almost everyone else in this discussion as well. That's why I hate it. It's manipulative.
To your question about telepathic cars, etc... It's gonna happen. Soon. My field requires me to watch the horizon, so I can tell you there's no way it isn't coming. I've had my eye on jobs in the area, in fact. I've even done a little bit of work on a bionics research project. I'm something of a tech optimist, so I might be the wrong person to ask. It's been my experience that these things usually aren't as bad as you might expect. If I get the opportunity, I'll do what I can to help.
Shifting back to the main point of discussion, and again as noted elsewhere, there isn't anything in the complaints to suggest the plaintiffs have evidence the data is being stored in a form that could be used for nefarious purposes. But, yeah, your intuition is right, they have to store stuff. What stuff? How much stuff? Bad stuff? It...depends. Mostly on how lazy the programmer was. To explain without getting really into the weeds with infosec: your data leaves a trace everywhere it goes, so there's always a chance of something getting left someplace you don't want it. That's how lots of data breaches happen. It's how private photos end up on the internet after they were deleted. The only way to avoid this would be to constantly overwrite everything with zeros once it's no longer needed, and that just isn't practical. It would slow all computing down to a crawl and wear storage hardware out much faster than it already does. There are ways to do this for sensitive information, but outside of corporate and government secrets, it isn't done much. Last I heard, the Feds found it easier to just toss their drives into an industrial shredder when they were done with them.
As to the politics of this stuff... I'm not sure if it's any comfort or not, but corruption (especially government corruption) is actually far, far lower than when we millennials were kids. The internet shined a spotlight on it, and lots of heads rolled. It's just that the spotlight keeps getting brighter, so you see it more. It's selection bias. Like going into the forest and kicking over logs. You're going to find gross stuff if you go looking for it. Try not to let it drive you crazy or smother your faith in humanity.
Ah phew okay. I was worried I would get a bad response from that. Thanks for understanding! Honestly, this interaction has reaffirmed my trust in tildes users.
I kinda feel dumb for falling for that article, because I am often aware of how manipulative headlines are and how things can be worded to persuade with emotions rather than facts. But I guess I just have to accept that I'm not perfect.
On another note about the telepathic cars, would I be hitting into the right ballpark by guessing it might be that the telepathy part will drive the self driving cars, so the company wont have to take responsibility for ethical errors in tough situations (like choosing between killing the driver or a pedestrian for example)? Or were you actually just meaning that cars will send data to us, rather than thr other way around?
I wonder if some genius tech person will come up with a way to transfer data in a whole new way that cant be traced. As in, no more ones and zeros kind of way. Its nice to dream lol.
I understand the necessity for this but I also wonder how much this contributes to pollution. Ofc there are far worse things causing pollution that need to be fixed.
I may have been too young to remember this part. If I'm not mistaken I'm at the younger end of the millennial group. But yes, you're completely right that it's just the spotlight effect. "Seek and ye shall find" I suppose. I've been trying to work on my cognitive distortions for years now. Though that has been for specific circumstances unrelated to this particular subject, so I wasn't in that "think twice before you feel" kind of mindset. But again, I just have to accept I'm not perfect and I will probably fall victim to the distortions at least every now and then. Thank you for reminding me and I apologize for my misunderstanding of your comment.
Brain-machine interfaces could make so many new things possible that it's hard to predict what will come out the other side. Typing with your brain has been a (clunky) thing for many years, so I would expect more of that to start. Sending and receiving messages with an implant instead of texting might at least be a little safer to do while driving.
It isn't great. Not sure how it stacks against the mountains of paper waste they were incinerating before. Can't imagine it's much better if at all.
People build entire careers on outrage-baiting and agenda-pushing. Having to constantly match that level of practice with your own is exhausting. Trying to balance that against being unreasonably cynical and skeptical isn't fun either. The fact that you didn't just dig in harder already puts you a cut above most people in these kinds of discussions, so maybe give yourself a little grace here.
No worries, it was at least partly my fault. The balance between "relax, I know what I'm talking about" and "insufferable jackass" is sometimes tough to strike. I may have fallen off the tightrope on this one.
Not who you replied to and this isn't my field, but there are some questions that should be raised.
Telephone companies have strict legal limits on how they store and use communication data.
The fact that professionals who are obligated to protect confidential information such as doctors and lawyers use emails and texts suggests that internet providers do as well.
Are these car companies bound by similar laws regulating communication, or is this a loophole that could cause medical professionals to violate the law or attorneys to violate professional ethics just because they are in a car while answering a text?
The legalities aren't my area at all either, so I would be guessing on that. My hope would be that if a service compromises someone else's confirmation agreement, they'd be the ones on the hook.
The technical reality may differ from the design specs, much less the law, in defiance of anyone's best expectations. Most engineers barely understand what the hell is going on inside these machines, and that's not a dig at the engineers. There's a lot more "hope for the best" going on than either you or I would like.
I am a lawyer, but not a communications lawyer.
I am not thrilled by the sensationalism of the article, but if car companies are storing texts and lists of calls, they should be subject to similar rules as phone companies.
I’m also not a communications lawyer.
Based on the complaints the car companies aren’t alleged to be doing anything with the data, it’s just alleged the data is stored to the infotainment system. So I guess I’d just treat it like any other electronic device that I do work on as far as complying with professional rules is concerned?
But I guess if we’re curious we could ask for advisory opinions from our state bars?
At least there are people here who can refute the sensationalism.
I would hope the regs are the same too. It sounds like the more likely vulnerability would be information sitting in RAM for an extended period. Your phone has that same vulnerability and is much easier to hack into than your car.
Crony Capitalism (as an ideology) reflects in such plain and blunt manner in the vast majority of these American court decisions. This is indeed quite worrying as US is the world's leading super power and everyone else typically follow the US instead of making them follow in such policy decisions.
You made this comment well after all the others explaining that this wasn't a decision but instead tossing out a case based on the fact that the plaintiffs didn't even demonstrate how they were harmed.
So... Do you disagree with that, or..?
I’d welcome more information as well. Perhaps there’s something left to be explained?
But since this conversation has been started I’ll presumptively address the portion of the comment about following bad policy decisions.
One thing I haven’t mentioned elsewhere:
The court of appeals decision linked in the article is “not precedent except as provided by Ninth Circuit Rule 36-3.”
If anyone is curious and wants to confirm that for themself, they can look at the top of pg. 1 and the footnote on pg. 1. And if anyone wants to read more about Ninth Circuit Rule 36-3 or the hierarchy of legal citations - most simply binding authority v. persuasive authority - I hope they’ll feel empowered to look into it.
Even courts in the 9th Circuit won’t be obliged to consider this decision when making future ones, must less follow it. So I’m not sure how this could be seen as a policy decision much less a decision with potentially global implications.
Yes, unpublished opinions can be cited as persuasive authority and if so would probably be attached to a filing and/or sent as a courtesy copy to chambers. But citing unpublished opinions is … never a first choice.
With that said, I could only imagine citing this particular decision for the notion that you can file copy and pasted complaints without being sanctioned.^
^: That’s sarcasm.
Oh no, I didn't even read what the other commenters had written. My comment was entirely generalized based purely on the general state of affairs in the world and probably induced by my perception of the ongoing global recession and its effect on my own life and career. Due apologies in case I unwittingly hurt your nationalistic sentiments in anyway.