By: Marissa Louro

On September 16, 2015, Apple introduced its new operating system: iOS 9. This new operating system contains a new feature known as “Wi-Fi Assist,” which allows users to stay connected to the Internet even with a poor Wi-Fi connection. Wi-Fi Assist will automatically switch from Wi-Fi to cellular data if there is poor Wi-Fi connectivity so that a website will continue to download despite Internet connectivity (to view this feature on your iPhone, go to Settings > Cellular > Wi-Fi Assist).

 

If you have iOS 9 and this is the first time you are learning about this new feature, then you are probably using Wi-Fi Assist. Why? Because Wi-Fi Assist is turned on by default when updating your iPhone software to iOS 9. Some enjoy this new feature. However, customers with low-usage data plans are angered by the unexpected fees on their phone bills. Apple started getting complaints from users because they were unaware of Wi-Fi Assist. Thus, it released a guide to Wi-Fi Assist in early October. On October 23, 2015, Apple was hit with a class-action lawsuit. The lawsuit alleges that Apple violated California’s Unfair Competition Law and Advertising Law, and negligently misrepresented Wi-Fi Assist. Smartphone manufacturers, such as Verizon or Sprint, have yet to be sued over this matter. Plaintiffs seek to represent two classes of iPhone users: a Purchaser Class and an Upgrade Class. The Purchaser Class represents “all persons or entities in the United States who purchased an iPhone or iPad with a cellular data plan with iOS 9 pre-installed for purposes other than resale or distribution.” The Upgrade Class includes “all persons or entities in the United States who upgraded an iPhone or iPad with a cellular data plan to iOS 9.”

 

Plaintiffs allege that Apple failed to warn customers that the new feature would use cellular data without their approval, thus unexpectedly impacting their cell phone bills. Specifically, Plaintiffs William Scott Phillips and Suzanne Schmidt Phillips claim that they upgraded two iPhone 5Ss to the new iOS 9 software and were not aware of Wi-Fi Assist. They believe that Apple intentionally decided to have the Wi-Fi Assist feature activated by default and chose not to inform users about the potential overcharges from cellular data. Hence, the lawsuit points to Apple as being responsible for the overage charges incurred by affected users—totaling about $5 million. Plaintiffs want Apple to reimburse them for these unanticipated fees.

 

It is interesting to note Apple’s correction of informing users about Wi-Fi Assist after receiving countless complaints from its customers. Apple was sure to include, “…you might use more cellular data,” in its guide to Wi-Fi Assist. It seems as though Apple realized it made a mistake and tried to quickly correct it to avoid lawsuits. Clearly, this attempt did not work.

 

Apple should warn its users about changes to its products/services when these new changes are implemented. As an iPhone user, it seems as though software updates are too frequent. How can we possibly know if Apple is slipping in “hidden” features, e.g. Wi-Fi Assist, into the software updates? This is concerning because of the frequency of software updates and the potential influence of new iPhone features on cell phone bills. Maybe this lawsuit will motivate Apple to take steps to notify customers about new changes in the future. Apple should consider emailing customers about new changes to software updates before the update is available. For example, Facebook took a similar approach in 2011 after it agreed to settle Federal Trade Commission charges that it deceived consumers. Facebook agreed to give consumers clear notice and obtain consumers’ express consent before sharing users’ information beyond the established privacy settings. This concept of notifying users before going beyond the established systems should be applied in the context of Apple. Since Apple added a feature that could financially burden its customers with unexpected, increased cell phone bills, it should have an obligation to notify its customers of changes so that they can choose whether they want to utilize the feature.

 

Marissa is a Staff Member on the Journal of High Technology Law. She is a 3L at Suffolk University Law School with a concentration in Business Law. Marissa holds a B.A. in Political Science from Providence College.

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