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

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

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

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

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