NEW-AGE DISCRIMINATION: DETERMINING WHETHER TINDER PLUS' PRICE IS RIGHT.

AuthorPraschma, Alex
  1. Introduction

    The rise of mobile applications ("apps") has infiltrated the lives of people all around the world and as a result, it has become one of the fastest growing categories of the global market. (1) As of July 2015, phone-tech company, Android, (2) has the largest app market allowing users to choose between 1.6 million apps, while Apple's App Store remained in a close second offering 1.5 million apps. (3) Apps are software programs, running on mobile devices that are designed to perform specific tasks such as streaming music, providing news updates, and checking the weather. (4) Prospective creators and designers are often attracted to apps' cost effectiveness and simplicity, which has resulted in a growing popularity in app development. (5)

    Modern day app development can be a highly rewarding and dynamic business venture with the capability of thriving for little start-up cost. (6) Even though barriers in the app business are few and low, there are still the same potential financial and legal pitfalls that are prevalent for any start-up business. (7) The most prominent legal issues in app development are entity formation, confidentiality, intellectual property ownership and protection, terms of use, and privacy. (8) While apps have historically been developed for informative and entertainment purposes, mobile online dating apps such as Tinder, Clover, and Hinge, have taken the app market by storm as digital dating has evolved into a "hand-held activity." (9) Amongst all others of its kind, Tinder has been at the forefront of the mobile-dating surge. (10)

    Tinder is a free, location based app that brings convenience to the conventional dating scene. (11) Along with reaching the milestone of being one of the first successful apps of its kind, Tinder has also brought attention to a legal issue not particularly prevalent in the app development market--price discrimination on the basis of age. (12) On April 29, 2014, Tinder was confronted with a class action suit in California Federal Court alleging that their mobile app's pricing policy discriminates on the basis of age. (13) Two years later, the presiding judge dismissed the class action suit on the basis that the plaintiff was unable to evidence "how he was harmed by the allegation." (14) Interestingly enough, in issuing his decision, the Judge stated that it was not made on the merits of the case, which bids the question, what would have happened had the plaintiff provided sufficient evidence of harm? (15)

    This Note will analyze both state and federal laws preventing discriminatory sales practices from a historical perspective and will advise on the issue of whether California's legal precedent should apply to Tinder's newly implemented pricing policy in the case, Manapol v. Tinder, et.al. (16) Section II of this note will discuss the evolution of social networking technology and illustrate how virtual social networks have become functionalized within our culture. (17) Additionally, this section will introduce the historical reasoning behind the prevention of discriminatory practices in various other fields while also highlighting discrimination on the basis of age using relevant case law and statutory regulations. (18) Section III will describe the facts of Manapol, and will connect the issue to past discriminatory practices and explore our culture's rising concerns related to the pricing of smartphone apps and services. (19)

    Section IV will compare and contrast Manapol's argument regarding Tinder's new pricing policy with case law, in an effort to determine whether this particular pricing policy is analogous to policies that have been previously outlawed. (20) Additionally, this Note will address the contention that even though this form technology may appear unnecessary and far removed from the Unruh Civil Rights Act's ("UCRA") legislative purpose, the rights and opportunities for consumers to enjoy products and services must remain consistent as we progress to a technologically advanced society. Section V will predict what the Manapol case's outcome would have been had it proceeded to litigation and articulate why the Plaintiff's argument would have prevailed as Tinder's pricing policy is in clear violation of the statutes enacted to prevent businesses from employing discriminatory practices towards those who collectively make up the consumer market. (21)

  2. History

    1. The History of Mobile App Development

      From where our society stands today, it is quite difficult to remember what life was like without the ability to use apps on cell phones, computers, and tablets. (22) Dating back to 1983, the age of apps began with the world's first cell phones--designed and distributed by Nokia. (23) Primitive apps included simple games like Tic-Tac-Toe, Snake, and Pong. (24) As unsophisticated as they were, these apps changed the way cell phone owners used their devices and "opened the doors" to app development. (25) Initially, cell phone users only had the ability to use simple apps such as "calculators, ringtone creators, basic arcade games, and calendars." (26) Companies habitually refrained from furthering their app development out of fear of revealing trade secrets in the competitive market. (27) Yet, as competition in the field drastically increased, the cost to develop devices decreased and companies had no choice but to innovate in order to survive through the implementation of Linux and Windows platform programming. (28) The execution of these new-age advancements provoked the generation of future app development. (29)

      In 1993, International Business Machine Corporation ("IBM") developed and distributed the first "smart phone" with a touch screen named "Simon." (30) This concept allowed users to access pre-installed apps such as "calendars, clocks, notepads, e-mails, contacts, and games." (31) Research In Motion Limited ("RIM") interpreted this as a challenge and created the first Blackberry, a device devoted to e-mail--a function users were craving. (32) In 2007, Apple then released the first iPhone and introduced the concept of the "App Store," providing device users with futuristic capabilities they had always dreamt about. (33)

      The App Store created a gateway for users to access a multitude of apps they could install on their personal devices. (34) Shortly after this release, Android, Inc. introduced the Android Market into the industry. (35) High Tech Computer Corporation ("HTC") (36) jumped at this opportunity and distributed the first available Android phone creating competition for Apple's iPhone. (37) In 2009, both markets reached one billion downloads, significantly surpassing society's expectations. (38) Apple then attempted to one-up their competitors by releasing the iPad, (39) which provided a "futuristic" method of enjoying mobile apps. (40) Competition in app development continued to increase during 2007 when Apple and Google's markets typical surpassed web usage by offering over one (1) million apps. (41) Several years later, both companies realized their visions had rose above all expectations when their marketplaces each reached over fifteen (15) billion app downloads. (42)

      Today, large companies, start-ups, and government entities are strong-armed into upgrading to mobile platforms because apps are now vital for communication and commercial success around the globe. (43) As the App development market continues to grow, the amount of legal issues involved steadily increases. (44)

    2. The History of Mobile App Pricing

      Originally, apps were either pre-downloaded on devices or could only be downloaded from the creating company's app store, usually free of charge. (45) When Apple initially launched the iPhone in 2007, it was not capable of running third-party software. (46) Thus, the CEO of Apple, Steve Jobs, lead the implementation of "web apps," (47) which allowed users to utilize Internet connections when using the product. (48) Shortly after Apple's iPhone release, developers around the world began "jail breaking" (49) their devices and began re-coding third-party apps to work on the device. (50) In an attempt to accommodate users' steady progression in technological perspicacity, with the launch of Apple's app store in July of 2008, Apple incorporated third-party app development software on their mobile devices, allowing developers to build apps and enabling end-users to download free third-party apps. (51)

      During this time, Apple collected commission on app purchases through the Apple Store, essentially incentivizing third-party developers to charge for their products. (52) In order to subsidize the cost of app development and generate a reasonable profit margin, the most popular app developers utilized advertisements to help finance the product's exposure to the world of mobile apps. (53) Shortly thereafter, competing app stores, such as Android's App Store and Blackberry's App Store, sprouted up across the app development market in 2008 and 2011 respectively. (54) In an effort to motivate users to purchase apps, rather than only download those that were free, developers offered added premium features like blocked advertisements. (55) Thus, the competitive and innovative app market as we know it today, was born. (56)

    3. Age Discrimination Legislation in the United States

      1. The Legislative History of the UCRA

        During the 1960's, many Americans were only slightly aware of the capability of "equal protections of the laws" and often held high expectations of the federal branches to enforce the protections reserved under the Fourteenth Amendment. (57) As a result, the federal branches of government debated whether the Constitution's prohibition of acts that deny equal protection "always bans the use of ethnic, racial, or gender criteria" and whether it was set in place in order to motivate social justice and benefits. (58)

        In 1964, Congress took this issue's resolution into its own hands and passed Public Law 88-352, (59)...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT