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Google can't shut down users' privacy class action over WAA settings, info tracking

NORTHERN CALIFORNIA RECORD

Friday, January 10, 2025

Google can't shut down users' privacy class action over WAA settings, info tracking

Lawsuits
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Googleplex, headquarters of Alphabet, parent company of Google | The Pancake of Heaven!, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons

A trial may loom in coming months for Google, after a federal judge rejected the tech giant's attempt to end a class action lawsuit accusing Google of allegedly collecting data from mobile device users  who claim to have believed they had adjusted their device settings to block such collection.

On Jan. 9, U.S. District Judge Richard Seeborg denied Google's request for summary judgment in the four-year-old class action lawsuit.

Summary judgment is a legal term for a ruling from a judge in favor of a particular party in a lawsuit, which would end the case before trial. Typically, it is awarded if a judge agrees the evidence shows one party should prevail under the law, eliminating the need to empanel a jury to decide the dispute.


Richard Seeborg | cand.uscourts.gov

The lawsuit was first lodged in San Francisco federal court in 2020 by attorney Mark C. Mao and others with the firm of Boies Schiller Flexner LLP, of San Francisco, Miami and Washington, D.C.

They have since been joined in the action by attorneys Bill Carmody, of the firm of Susman Godfrey, of New York, and John A. Yanchunis, of Morgan & Morgan, of Tampa, Florida, and others with those firms.

The suit was filed first on behalf of named plaintiffs JulieAnna Muniz, of El Cerrito, and Anibal Rodriguez, of Homestead, Florida.

The plaintiffs have sought from the start to expand the action to include potentially 100 million other Android and iPhone users, potentially setting up a massive payout from Google.

The lawsuit accused Google of violating the privacy rights of the mobile device users by allegedly continuing to log users' activity even after they had adjusted their account settings to allegedly prohibit such data collection.

Specifically, the lawsuit took aim at Google's practices centered around the so-called WAA button. The lawsuit asserts Google falsely led users to believe toggling that button on their device would provide privacy when using apps, rendering their interactions "pseudonymous," or individually indistinguishable.

However, the lawsuit asserts Google continued to track their personal interactions and allegedly made that information available to app developers through analytics, allegedly allowing app developers to personalize their experiences and to allow advertisers to better target ads at specific users.

Google has disputed those accusations from the start, calling them "patently false."

In a statement published in other reports following the judge's new ruling, a Google spokesperson said: “Privacy controls have long been built into our service and the allegations here are a deliberate attempt to mischaracterize the way our products work."

The company sought to end the class action lawsuit, by arguing their practices were not illegal, were not secret, and they were in keeping with the company's privacy policy and other terms and disclosures in their user agreement.

In his ruling denying Google's motion for summary judgment, Seeborg rejected those assertions, saying plaintiffs had presented enough evidence to show a jury could see otherwise.

The judge said he did not believe the evidence made it clear that Google's practices amounted to little more than "basic record-keeping practices," nor that it was clear that customers knew what Google intended to do when they clicked "Agree" on their user agreement.

In his decision, the judge pointed to purported communications among Google employees, showing the company had at least some inkling their policies and agreements had been made "'intentionally vague' about the technical distinction between data collected within a Google account and that which is collected outside of it because the truth 'could sound alarming to users.'"

"The concerns raised by Google employees are relevant, ... at the very least for tending to show that the WAA disclosures are subject to multiple interpretations," Seeborg wrote. "What is more, the remarks and Google’s internal statements reflect a conscious decision to keep the WAA disclosures vague, which could suggest that Google acted in a highly offensive manner, thereby satisfying the intent element of the tort claim. 

"Then again, these comments could also be ascribed to the unremarkable culture in large technology enterprises where employees simply offer improvements of the company’s products or services. Whether Google or Plaintiffs’ interpretation prevails is a triable issue of fact," the judge wrote.

Google is represented in the action by attorney Benedict Y. Hur and others with the firm of Willkie Farr & Gallagher LLP, of San Francisco.

A jury trial has been scheduled in the case for mid-August.

That date could change, however. And a trial may not happen at all, should Google choose to settle the claims against it in the case, rather than face the risk of a jury trial in the Northern District of California.

Courts in California at both the federal and state levels have developed a reputation over the past decades as being infamously friendly to plaintiffs pressing legal claims against businesses.

The American Tort Reform Association, for instance, has consistently rated California's courts as one of the country's worst "Judicial Hellholes" for what ATRA and other business advocates have described as the state legal system's overly permissive stance toward lawsuits, whether grounded in real injuries or not.

Google and other tech and social media companies have been hammered for years by a series of other class actions in California courts related to alleged violations of user privacy rights. 

Settlements in those cases have amounted to hundreds of millions of dollars, with many millions of dollars paid to the plaintiffs' lawyers who file the lawsuits.

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