PHOENIX — A judge has given the go-ahead for Arizona’s attorney general to pursue consumer fraud claims against internet giant Google.
In a 12-page ruling Friday, Maricopa County Superior Court Judge Timothy Thomason rejected Google’s bid to have the case dismissed.
The judge said Attorney General Mark Brnovich’s allegations that the company hid its practices of selling consumers’ location information to advertisers are sufficient to allow the case to go to a jury.
But Thomason also said that, when all is said and done, he’s not sure Brnovich and his lawyers can make their case.
The lawsuit contends 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 Google does not make it simple for people to turn off tracking, because it wants to sell the information to advertisers who then target users in specific locations.
That information generated $135 billion for Google in 2019, Brnovich said.
Brnovich now must overcome the hurdle of proving that anything Google did fits within the scope of the Arizona Consumer Fraud Act, the only power he has over the company.
Thomason said that that law protects Arizona consumers from deceitful practices.
But, “a deceitful practice itself is not enough to fall under the ACFA,” the judge wrote. “Rather, it must be connected to the sale or advertisement of merchandise.”
The problem Brnovich has is showing some link between anything Google did and the decision by individuals to purchase Android phones, the judge said.
“The facts might ultimately demonstrate that the deceit is far too removed from the sales or advertisements to satisfy the statutory requirement,” Thomason wrote.
Brnovich says the lawsuit is not just related to the sale of the phones. He said there were “actionable sales” of various apps, including maps and Google Chrome software.
Only thing is, consumers didn’t actually purchase any of those apps. “There has to be a sale,” the judge said.
“Gratuitous transfers are clearly not covered,” Thomason said. “If the apps were truly provided free of charge, it is hard to see how they could have been sold.”
But the judge said he will allow Brnovich to try to prove that there was a “sale,” specifically the sales of advertising by Google based on its tracking of phone users.
Still, “Google does make convincing arguments,” he wrote.
“For example, the deception does appear to be far removed from Google’s sale of ads to third parties,” the judge continued. “The sale of ads to third parties certainly does not appear to be part of the consumer’s bargaining process.”
And Thomason said there is no legal precedent to support Brnovich’s contention there’s a sufficient connection between deceiving the consumer and the sale of advertising to others.
“Whether the state can ultimately prove that this is the case is questionable,” he said.
Thomason noted that Brnovich does have another legal theory.
The state contends the deceit also involves the companies that manufacture phones running the Android operating system. Manufacturers were induced to make it more difficult to shut down location tracking when users are setting up their phones, Brnovich argues.
All that could provide “strong circumstantial evidence” that Google was relying on information on the tracking being concealed from users, Thomason said.
No date has been set for a trial.
