PHOENIX — Google will have to go to court to defend against charges that it secretly invades the privacy of Arizona consumers.
In a ruling made public this week, a Maricopa County judge rejected claims by the internet giant that its admitted practices of tracking and collecting information on users is legal.
Superior Court Judge Timothy Thomason said Attorney General Mark Brnovich presented enough information to show the likelihood that the company’s conduct violates the Arizona Consumer Protection Act.
Thomason’s conclusions do not guarantee the state will win its case. But it essentially clears the way for Brnovich and the outside attorneys his office has hired to take the case to a jury.
The Arizona case is separate from lawsuits that various states filed earlier this week alleging deceptive location tracking practices. Those are based on more general claims of privacy.
By contrast, Brnovich is specifically depending on Arizona’s consumer protection laws. And the judge said there is sufficient evidence at this point to suggest that Google’s actions appear to violate them.
There was no immediate response from Google.
Central to the lawsuit is the contention the company not only collects and stores location data but deliberately makes it difficult for those who use Android phones that operate on the Google-created operating system to know what information is being sent.
Brnovich also argues that the company does not make it simple for people to turn off tracking and hides the fact that even if customers turn off location history, that data is still transmitted.
More than Android-powered phones are at issue.
Google also collects, stores and uses location data whenever people interact with Google apps and services. Brnovich contends consumers are not told they cannot prevent the collection of location information, even if they disable certain settings.
Google’s business practice is to sell that information to advertisers to target users in specific locations. That information generated $135 billion for Google in 2019, including “hundreds of millions of dollars from ads presented to millions of users in the state of Arizona,” Brnovich said when he filed suit in 2020,
Despite acknowledging many of the practices, attorneys for Google said none of them violate Arizona consumer protection laws.
Those laws makes it illegal to engage in deceptive and unfair practices “in connection with” the sale or advertisement of any merchandise.
Google attorneys said that any fraud that may have occurred — and they are not conceding any did — was not part of the process of consumers obtaining Google products but only occurred later, after the sale was made, when they set up accounts or used an app. In fact, they said users are not even required to set up an account, meaning there is no connection between the sale and the alleged deception.
“There is some appeal to Google’s argument,” Thomason wrote. He said the consumer fraud act is intended primarily to address situations where people are misled while buying or leasing merchandise.
“Statements or omissions that occur after the sale or lease arguably have no impact on the consumer’s purchasing decision,” the judge said.
But Thomason said there is enough in the state’s argument to suggests Google actions fall within what’s prohibited by the law.
Google devices, like Pixel and Nexus phones, come pre-loaded with functions, including sensors and settings within them, which Google then uses to track consumers’ locations. The state argues that during the “bargaining process,” when people were buying the devices, they weren’t told about the tracking.
“The state claims that Google acted deceptively in not explaining to consumers how tracking functions worked, leading consumers to incorrectly believe that they could control when they could be tracked,” the judge said.
Even those who do not buy Google phones are affected when people use Google services, like Google Maps, where people get a service, such as directions, in exchange for giving the company their personal location data.
What’s wrong with this, the state says, is that customers are misled into believing the company will only collect data in certain ways and, potentially more significant, that users have control over what information is collected.
Google said none of that violates Arizona law because it provides the apps free of charge. Thomason, however, said there are two flaws to that argument.
The first, he said, is nothing in the Consumer Fraud Act requires that there be a payment in order for the law to apply. Also, the state claims the services really aren’t “free.”
“They were ‘sold’ to users, despite ostensibly being ‘free,’ because there was an exchange of consideration in the form of data collection from users,” Thomason said. “Providing location data, in exchange for use of apps or other services, can certainly be considered valuable consideration under the act.”
And what consumers are providing has economic worth, the judge said.
“Location information is clearly valuable to Google’s business model, as Google uses the information to make targeted ad placements, for which advertisers pay a premium,” Thomason wrote in his 21-page ruling. He specifically rejected the company’s efforts to compare its apps and services to free newspapers and TV and radio stations that provide services to consumers without cost.
“Free newspapers and broadcast radio are financed through untargeted advertising,” he said. “Newspapers and broadcast radio do not condition their services on receiving something ‘back’ from the consumers. In contrast, Google allegedly takes user location information in exchange for the use of its apps and services and uses that same information to direct advertising targeted toward specific consumers.”
In a separate ruling, Thomason rebuffed a bid by Google to have him — and not a jury — hear the case. The judge noted that the Legislature approved a measure just last year requiring a jury trial in any civil action brought by the state alleging an illegal practice.
Google argued that provision was “slipped into” another bill at the last minute and that Brnovich’s office “orchestrated” the approval to avoid bench trials in this and similar cases, and that he made false statements to legislators passing off the provision as a mere clarification of existing law. The judge dismissed those arguments, saying they are legally irrelevant here.
“There is no legal basis for the court refusing to apply a statute because it was allegedly passed in an unfair or dishonest manner,” he said. Nor, he said, can judges be dragged into debates about whether there were “misstatements” about a bill.
“Indeed, it is highly likely that misstatements are regularly made about proposed laws in Washington and a state capitols across the country,” Thomason wrote. “The court is in no position to look ‘behind’ duly passed statutes and make sure they were passed in a ‘fair’ manner and that no misstatements were made to legislators by proponents of the bill.”
