software california liability harassment
Can I sue an app for enabling harassment?
<p>Can I sue an app for emotional distress?</p>

<p>My soon-to-be ex-husband has been using a fake phone number app in order to impersonate:</p>

<ul>
<li>my child's school</li>
<li>the coroner's office</li>
<li>the police officers who are handling the 3 warrants out for his arrest</li>
<li>the district attorney's office</li>
<li>my family members</li>
</ul>

<p>and so forth. </p>

<p>I am scared to answer my phone and I'm terrified when my son's school calls thinking it's an accident; the same goes with the other numbers he uses.</p>

<p>There are legitimate apps that let you buy phone numbers. With the right app I can buy let's say a landline number in Kansas. I call you, and you will think it's some guy in Kansas calling you. That's totally legal, it's a genuine phone number, and just like I can buy 10 phones and have ten phone numbers, I can use an app to pretend to have 10 phones. I cannot pretend to by your child's school with that kind of app, because for obvious reasons your child's school's number is not up for sale. </p>

<p>If an app let's you pretend to be someone else, like your child's school, then your phone company will be very interested in hearing about that. You don't have to sue the app maker, your phone company will. These three police officers will also be very interested, and impersonating a police officer is by itself a crime. (Normally impersonating a police officer is done by putting on a uniform, but calling you with the number of that police officer will also count). So these three police officers will have a word with your husband as well. </p>

<p>So suing the app maker (you can't sue an app, you can only sue the people responsible for it) is very hard, and not needed. Complain to your phone company, complain to the police, first to the three police officers he impersonated (the phone company will have records of phone calls seemingly coming from them) to advice them they are being impersonated, and then you complain to the police for harassment.</p>

<p>Yes. But you might not want to.</p>

<p>The general rule of thumb is: anyone can sue anyone else, at any time for any thing. However, I believe in this case you would need to show actual damages. I don't think emotional distress qualifies as actual damages. That type of thing is usually awarded as an add-on to something like a personal injury case; it's usually called "pain and suffering" if I'm not mistaken. Emotional distress is usually not compensated.</p>

<p>To your question about suing an app: you can always sue, provided you can find an attorney to represent you; but you are likely to encounter a few challenges.</p>

<p>Firstly, suing apps is a new area of law. So not much case law exists. This will present a challenge to your attorneys as well as to the courts.</p>

<p>Secondly, it could be difficult to find the owner of the app. It depends who owns the app and how much care they have taken to conceal their identity.</p>

<p>Thirdly, establishing jurisdiction can be challenging. Apps can run from servers anywhere in the world. App developers are extremely mobile. Suing a rogue developer operating inside an unfriendly country, for example, could be prohibitively expensive.</p>

<p>Fourthly, under the most favorable scenario considering the above questions, it's unclear what damages you've suffered and how much liability the app owners bear in proportion to, say, the app user i.e., your soon-to-be ex-husband.</p>

<p>Lastly, if you win and the app owner lives in a different country, has few assets or his assets are "judgment resistant," collecting your damage award could have its own set of challenges, obstacles, hurdles and roadblocks.</p>

<p>All things considered, it could be an uphill battle all the way and at a minimum very expensive. If not prohibitively so. I'd say it's a long shot.</p>

<p>Yes, you can, and I believe you'd have <em>some degree</em> of traction.  The argument is that the app is giving him a variety of phone numbers to use, and <em>legitimate uses</em> of such an ability are few and far between.  </p>

<p>Most uses of a phone number changer are "mischief of one kind or another", <strong>and the developer knew that, or reasonably should have known that</strong>.  Companies are not allowed to offer a basically criminal or exploitive product and hide behind some thin veil of plausible deniability. </p>

<p>The courts are very liberal on this point; consider the Righthaven case. Righthaven's game was to find websites who had copied newspaper articles without permission and extort money from them.  This was under the guise of "copyright enforcement" and they contracted with newspapers to give it a legitimate air. One person sued, saying the entire approach was exploitive of consumers and the legal system was never meant to be used this way.  Courts wholeheartedly agreed, and curb-stomped Righthaven. </p>

<hr>

<p>As far as jurisdiction and venue; indeed the app manufacturer may be in a faraway foreign land.  However <strong>the app store is in the U.S.</strong> or has a presence in your advanced first-world nation with a competent legal system. As such they are fully reachable. This is both a blessing and a curse.  </p>

<ul>
<li>The third-world app developer is unlikely to appear in court, so they won't present any facts or arguments.  That isn't a "win by default" as the judge can still decide against you based on your provided evidence.  But it's definitely a huge advantage.  </li>
<li>The app store (Google, Microsoft or Apple) is likely to join the lawsuit, so now you're up against the toughest legal teams in the world.  The upside, however, is <em>they don't have a dog in the fight</em>: since you're not suing <em>them</em>, they have little to lose.  </li>
<li>However if your argument threatens their entire business model, then the App Store <em>does</em> have a dog in the fight, and will fight nasty. However you will also have allies such as the EFF and the media.</li>
</ul>

<p>As a layman, it seems to me that an "app" is not a legal person, but the app's author almost certainly is, so the question I assume you are asking is can you sue an app's author.   </p>

<p>My guess is that it depends a lot on how you got the app, and what sort of warrantees were made as to the app's suitability to the purpose for which you used it.   If the app's author had a good lawyer, he's probably got a license agreement that limits the damages you can collect. For example, in a MIT licence, covering free software, you will typically find:</p>

<p>THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE
AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER
LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM,
OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE
SOFTWARE.</p>

<p>I am not a lawyer, and this observation is not a legal opinion.   I'm a software developer and I depend on license agreements including language in caps above.</p>
