Carrier IQ Press Statement

Mountain View, CA - November 23, 2011 - As, of today, we are withdrawing our cease and desist letter to Mr. Trevor Eckhart. We have reached out to Mr. Eckhart and the Electronic Frontier Foundation (EFF) to apologize. Our action was misguided and we are deeply sorry for any concern or trouble that our letter may have caused Mr. Eckhart. We sincerely appreciate and respect EFF's work on his behalf, and share their commitment to protecting free speech in a rapidly changing technological world.

We would like to take this opportunity to reiterate the functionality of Carrier IQ's software, what it does not do and what it does:

• Does not record your keystrokes.
• Does not provide tracking tools.
• Does not inspect or report on the content of your communications, such as the content of emails and SMSs.
• Does not provide real-time data reporting to any customer.
• Finally, we do not sell Carrier IQ data to third parties.

Our software is designed to help mobile network providers diagnose critical issues that lead to problems such as dropped calls and battery drain.

Here's what our software does:

• Our software makes your phone work better by identifying dropped calls and poor service.
• Our software identifies problems that impede a phone's battery life.
• Our software makes customer service quicker, more accurate, and more efficient.
• Our software helps quickly identify trending problems to help mobile networks prevent them from becoming more widespread.

We look forward to a healthy and robust discussion with EFF that we believe will be helpful to us, to our customers, and to consumers that use mobile devices. We welcome feedback on our products and understand that Mr. Eckhart and other developers like him play an important role by raising questions about the complicated and technical aspects of the mobile ecosystem.

Carrier IQ Inc. 1200 Villa Street, Suite 200, Mountain View, CA 94041

November 21, 2011

VIA EMAIL

Re: Carrier IQ's Cease-and-Desist Demand to Trevor Eckhart

Dear Mr. Dullea:

As you know, the Electronic Frontier Foundation represents Trevor Eckhart, the security researcher who published an analysis of Carrier IQ's software at http://androidsecuritytest.com/features/logs-and- services/loggers/carrieriq, and posted copies of Carrier IQ training materials at http://www.androidfilehost.com/main/.TrevE/CIQ/ and http://www.multiupload.com/BAAKNNSM3J. Prior to Mr. Eckhart's publication, these materials were freely available to the public on a Carrier IQ website, http://dis1.water.carrieriq.com.

We have now had a chance to review your allegations against our client, and have concluded that they are entirely baseless. Mr. Eckhart used and made available these materials in order to educate consumers and security researchers about the functionality of your software, which he believes raises substantial privacy concerns. Mr. Eckhart's legitimate and truthful research is sheltered by both the fair use doctrine and the First Amendment.

Copyright Issues

With respect to your allegations of copyright infringement, Mr. Eckhart's analysis and publication of Carrier IQ's training materials is a classic fair use and, therefore, non-infringing. 17 U.S.C. § 107 ("the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting . . . or research, is not an infringement of copyright."). Courts generally consider four factors in a fair use analysis: 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used, and 4) the effect of the use on the potential market for the work. Id.; Campbell v. Acuff-Rose Music, 510 U.S. 569, 577 (1994). Each of these factors favors Mr. Eckhart.

Purpose and character of the use. Mr. Eckhart's copying of any Carrier IQ materials was intended not to replicate Carrier IQ's original purpose for the documents, but rather to facilitate research and critical commentary about Carrier IQ's software. It is therefore a highly transformative use. See generally Campbell, 510 U.S. at 579 (transformative works "lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright"); Castle Rock Ent. v. Carol Pub. Group, Inc., 150 F.3d 132, 141 (2d Cir. 1998) (a transformative work "is the very type of activity that the fair use doctrine intends to protect for the enrichment of society."); Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195, 1201 (N.D. Cal. 2004) (finding students' publication of voting machine manufacturer's email archive to support public criticism of voting machines a transformative use).

Nature of the copyrighted work. The materials in question are factual rather than creative, and therefore subject to only the thinnest copyright protection. See Harper & Row, Publrs., Inc. v. Nation Enters., 471 U.S. 539, 563 (1985) ("The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.").

Amount and substantiality used. Mr. Eckhart has copied no more than necessary for purposes of his research. His analysis of Carrier IQ software was based in significant part on the training materials, which he provided to the public for the purpose of allowing others to independently verify his findings. As the Supreme Court has recognized, fair uses often involve substantial portions of an original work. Campbell, 510 U.S. at 588; see also Mattel, Inc. v. Walking Mountain Prod., 353 F.3d 792, 803 n.8 (9th Cir. 2003) (holding that "entire verbatim reproductions are justifiable where the purpose of the work differs from the original.").

Effect of the use on the potential market for the work. Critical transformative uses rarely -- if ever -- supplant markets for the original material. Campbell, 510 U.S. at 591-92; Harper & Row, 471 U.S. at 567-69. The training materials published by Mr. Eckhart plainly do not invade any licensing market for works that may be copyrighted by Carrier IQ.

More broadly, Mr. Eckhart published his analysis of Carrier IQ and the underlying training materials to educate the public about privacy concerns raised by your software, which is installed by default on many mobile devices, unbeknownst to most consumers. Dissemination of this information unquestionably serves the public interest. Nimmer on Copyright, § 13.05[B][4] ("the public interest is also a factor that continually informs the fair use analysis."); see also Sony v. Universal, 464 U.S. 417, 431-32 (1984) ("courts are more willing to find a secondary use fair when it produces a value that benefits the broader public interest."); Mattel, 353 F.3d at 806 ("the public benefit in allowing . . . social criticism to flourish is great."); Online Policy Group, 337 F. Supp. 2d at 1203 (students' publication of voting machine manufacturer's emails to inform the public about problems in voting machines served the public interest).

"False Allegations" Issues

You also claim that Mr. Eckhart published "false allegations" that are "without substance," "untrue," and that Carrier IQ considers "damaging to [its] reputation and the reputation of [its] customers." We have repeatedly asked you to specify the statements you believe are actionable. You have failed to do so, and have instead merely repeated your broad accusations. We believe you are not able to substantiate your allegations because Mr. Eckhart's factual findings are true. If you are able to specify any statement that you believe is false, Mr. Eckhart will be happy to provide you with the documentation of that finding.

Moreover, your client is a public figure. Under well-established Supreme Court precedent, commentary and criticism regarding Carrier IQ's professional activities receive additional protections under the First Amendment, because there is a heightened public interest in facilitating such speech. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); Hustler Magazine v. Falwell, 485 U.S. 46 (1988). Given that there is no basis for your legal claims, we must conclude that your threats are motivated by a desire to suppress Mr. Eckhart's research conclusions, and to prevent others from verifying those conclusions. Mr. Eckhart stands by his research and, accordingly, declines to meet your demands. We ask that you immediately withdraw your allegations in writing.

Nothing in this letter shall be deemed to waive any of Mr. Eckhart's rights or remedies, all of which are expressly reserved.

If you have any further concerns, please do not hesitate to contact me.

Sincerely,

[signed]

Marcia Hofmann, Esq.
Senior Staff Attorney

CEASE AND DESIST DEMAND

Sent by Certified Mail and email

November 16, 2011

Trevor Eckhart

[redacted]

Dear Mr. Eckhart:

I am writing on behalf of my employer, Carrier IQ, Inc., to notify you that your unlawful copying of Carrier IQ, Inc.'s training materials on your website¹ (the "Training Materials") infringes on Carrier IQ, Inc.'s exclusive copyrights. Accordingly, you are hereby directed to

CEASE AND DESIST ALL COPYRIGHT INFRINGEMENT.

All copyrightable aspects of the Training Materials are copyrighted under United States copyright law and Carrier IQ, Inc. is the owner of such copyright. Under United States copyright law, Carrier IQ, Inc.'s copyrights have been in effect since the date that the Training Materials were created.

It has come to our attention that you have been copying the Training Materials. We have copies of your unlawful copies to preserve as evidence. Your actions constitute copyright infringement in violation of United States copyright laws. Under 17 U.S.C 504, the consequences of copyright infringement include statutory damages of between $750 and #30,000 per work, at the discretion of the court, and damages of up to $150,000 per work for willful infringement. If you continue to engage in copyright infringement after receiving this letter, your actions will be evidence of "willful infringement."

CEASE AND DESIST ALL FALSE ALLEGATIONS.

In addition to infringing Carrier IQ, Inc.'s copyrights, you have made allegations on your website (see footnote 1), that are without substance, untrue, and that we regard as damaging to our reputation and the reputation of our customers. At this time we demand that you remove such allegations from the web and cease and desist from making any allegations or passing any false and unsubstantiated public comment directly or indirectly on our company, products, services or companies who may use our technology.

We demand that you immediately

• cease and desist your unlawful copying of the Training Materials;
• contact all persons and entities to whom you have directly or indirectly provided copies of the Training Materials and inform them that such materials are confidential/copyright-protected materials belonging to Carrier IQ, Inc. were provided improperly in infringement of the rights of Carrier IQ, Inc.;
• provide Carrier IQ, Inc. with contact information for all such persons and entities;
• cease and desist from making any unsubstantiated allegations or passing any false or unsubstantiated public comment directly or indirectly relating to Carrier IQ, Inc. technology;
• send written retractions to all persons and entities to whom you have directly or indirectly distributed the unsubstantiated allegations relating to Carrier IQ, Inc. products or services;
• issue a public press release on the AP wire containing the following statement:

• remove all content and references to Carrier IQ, Inc. (including references to Carrier IQ and/or CIQ) from the website androidsecuritytest.com, any mirrors and references and replace your original "CarrierIQ" article with the following statement:

  "Carrier IQ, Inc. has requested that I remove my original article entitled "CarrierIQ" as it contained numerous inaccuracies and material subject to their copyright. I would also like to apologize to Carrier IQ, Inc. for misrepresenting the capabilities of their products and for distributing copyrighted content without permission.

  "On clarifying the actions of Carrier IQ, Inc. software, it is clear that while they inspect many aspects of device performance they are not in fact recording keystrokes or providing user tracking tools and have no intention of doing so.

  "Carrier IQ, Inc. technology does not allow their customers to task devices which are no longer in their service (for example when a subscriber of one operator moves their phone to another operator) and restricts each customer to its own subscribers.

  "The Carrier IQ, Inc. software is integrated by intent by device manufacturers and operators; it does not meet the definition of a rootkit and does not subvert the operation of the device as I previously claimed. Under my previous definition, any software loaded by an OEM that shipped with a device would meet my criteria for rootkit."

• provide Carrier IQ, Inc. with prompt written assurance by 12.00pm EST on November 18th that you will comply with the foregoing.

If you do not comply with these cease and desist demands withing this time period, please be advised that Carrier IQ, Inc. will pursue all available legal remedies, including seeking monetary damages, injunctive relief, and an order that you pay court costs and attorney's fees. In addition, Carrier IQ, Inc. is entitled to use your failure to comply as evidence of "willful infringement" of copyright and seek monetary damages and equitable relief for your copyright infringement. In the event you fail to meet this demand, your liability and exposure under such legal action could be considerable.

Before taking these steps, however, Carrier IQ, Inc. wishes to give you one opportunity to discontinue your illegal conduct by complying with this demand by 12.00pm EST on November 18th. Accordingly, please sign and return the attached Agreement by 12.00pm EST on November 18th to

Joseph J. Dullea
c/o Jewel Rich
1200 Villa St., Suite 200
Mountain View, Ca 94041

With an email copy to [redacted]@carrieriq.com, [redacted]@carrieriq.com

If you or your attorney have any questions, please contact me directly.

Sincerely,
Carrier IQ, Inc.
[signed]
Joseph J. Dullea
General Counsel
[redacted]

¹ http://androidsecuritytest.com/features/logs-and-services/loggers/carrieriq/ ; http://androidfilehost.com/main/.TrevE/CIQ/