2 Takeways From the CarrierIQ Situation, from a SaaS Attorney
Ok this CarrierIQ situation is really crazy, but there are some things (from a SaaS Attorney’s perspective) that every software or SaaS company should think about.
1) Who is really at fault here: CarrierIQ or the carriers?
- While this is a complex question (and as of today all of the facts are not known) what we do know is Carrier IQ is the software provider and the carriers have licensed their software for use on mobile devices for sale to consumers.
- Two key issues are what type of monitoring the carriers were performing on the phones, and was it disclosed.
- Seems to me, that what was being monitored and if there is an issue of ‘not disclosing’ something, really falls on the carrier’s shoulders. The carriers are the ones that determine what information to collect, transmit, etc., and also are the ones with the obligation to disclose these type of activities to their customers.
- Oh, I am not simply making this up, as Tech Crunch (‘Don’t Blame the CarrierIQ’) and CBS News (‘Carrier IQ wrongly accused of keylogging?’) seem to be taking this view too.
2) What does the indemnity say between CarrierIQ and the carriers?
- Ok I know indemnities are something that makes most people’s eyes glaze over, but this is important, so stay with me. Most software or SaaS providers should only be providing infringement indemnities, and not a typical general indemnity (