PHOENIX — Lawyers for internet giant Google are arguing it doesn’t legally matter if the buyers of their Android cell phones were misled about the company’s tracking of users.
At a court hearing Friday, Google attorney Ben Hur asked a judge to toss out a lawsuit filed against the company last year by Attorney General Mark Brnovich.
That lawsuit claims the company has been and is violating the Arizona Consumer Fraud Act by lying to phone buyers about tracking practices and their ability to stop their whereabouts from being sent to Google.
But Hur said the law Brnovich is using to sue applies only in cases where a company made statements that actually led a consumer to purchase an item. In this case, he said, there is no evidence of that.
Hur also urged the judge, Maricopa County Superior Court’s Timothy Thomason, to toss out Brnovich’s other theory.
That theory is that the Consumer Fraud Act applies because there was a sale to a consumer: the advertisers. These are the companies that paid Google money every time someone whose location was being tracked clicked on one of their ads.
“That would be a completely novel expansion” of the law, Hur said.
An attorney for the state urged Thomason not to read the law so narrowly.
“Google’s primary business, which is these ad sales, is built on and dependent on this deceptive conduct,” said Peter Patterson, a private attorney retained by the state to assist in the case.
In essence, he said, Google is hiding its tracking from phone users because that means more opportunities for the company to track their location — and more profits for the company from advertisers using this information.
Patterson also said it would be wrong to say that no one was relying on misleading information furnished by Google when deciding to purchase a phone that uses Google’s Android operating system, the one the state alleges hides the tracking features.
He said there are plenty of consumers who are concerned about privacy and may have made a decision on which phone to buy based on assurances that the tracking information could be totally disabled. Only later, Patterson said, did they realize it really could not — or it was so difficult to do so that it became a practical impossibility.
Hanging in the balance are the requests by Brnovich to:
- Enjoin what he claims are illegal practices in how the company explains its privacy settings and hides ways to reset them.
- Order the company to surrender any profits it made from these practices from the $135 billion a year it collects in advertising revenue.
The heart of the lawsuit is Brnovich’s contention that Google has made it “exceedingly hard for users to understand what is going on with their location information, let alone opt-out of this morass.”
“Even if a consumer or customer turns off their location, they’ve got their location history off, Google surreptitiously is collecting information through other settings, other apps, other web activity,” he told Capitol Media Services. “That includes physical location, everything about where you’re going, your doctor’s office.”
In asking Thomason on Friday to toss the case, Google lawyers made no reference to the tracking practices or arguments about their propriety. Instead, they argued that Brnovich has no basis to sue using the one legal tool provided to him by the Legislature: the Arizona Consumer Fraud Act.
The next step is for Thomason to rule on Google’s motion to dismiss the case now. If he does not, that would pave the way for a full-blown trial where evidence of the company’s practices would be presented to a jury.
One reason Google may want to avoid that relates to what has been the company’s efforts to shield certain internal documents from public disclosure.
While Google surrendered many documents to Brnovich, it has so far been successful in getting Thomason to rule that some of that cannot be shared for now in publicly filed paperwork.
But if the case goes to court, the state will want to present all of that to the jury in its effort to prove its case. And that would also make documents part of the public exhibits.
