SAN FRANCISCO (CN) — Google argued at a motion for summary judgment hearing Thursday afternoon that a proposed class action filed by Google users over data collection is meritless.
At issue in the case is the Web and App Activity toggle in Android device’s settings. Turning the toggle off prevents future web and app activity being saved to a user’s Google account.
The class plaintiffs, a suit first filed in 2020, claim that Google collected their personalized data even though they turned the toggle off. They claim the toggle gives users the false impression that they can “opt out” of sharing all data with Google and third-party developers, and accused Google of invasion of privacy.
Eduardo Santacana, counsel for Google, said that the tech giant only collects pooled, anonymized data to help app developers understand how consumers use their apps, not personalized, identifiable data.
“First, Google said what it meant. And it did what it said. Second, to the extent Google didn’t get the language exactly right, what it did do with the data in question was harmless and not highly offensive. Third, Google’s intent, backed up by major investments in safeguarding pseudonymized user data, cannot give rise to liability under the two remaining claims in the case,” Santacana told U.S. Chief District Judge Richard Seeborg.
Santacana said that none of the data that Google collected could be tied back to a user and that the defendants had failed to include a single example of the data being tracked back to a user, being used for personalized advertisements or being used to build marketing profiles.
“If the plaintiffs had identified any example of Google connecting this data and associating it with personal information under any reasonable definition, they would be jumping up and down screaming about it in their brief,” he said.
Instead, Santancana explained, the defendants have only theorized that one day a bad actor at Google could breach the information if Google’s systems were to change.
Seeborg, a Barack Obama appointee, told Santacana that he thought the language in Google’s privacy policy could possibly mislead a reasonable consumer into believing that toggling the function off stops collection of all data.
Santacana replied that it’s not Google’s fault if a user doesn’t interpret the policies correctly. He said the policy does its best to show users that there is personal info and non-personal info, and allows users to opt out of the company using the personal info.
“What you really have to convince me of is that no reasonable person could have a contrary view,” Seeborg said.
The plaintiffs claims fail, Santacana said, because they had failed to show that Google had any intent to take prohibited data; in fact, the mere existence of a system safeguarding the user’s data proves there was no intent to mislead users, Santacana said.
“The two claims that remain here are not strict liability claims. They require intent. They require the intent that is missing,” he said.
Seeborg said that granting summary judgment on intent is generally disfavored, but Santacana countered that the intent requirement is so strong that it warrants summary judgment.
“Google isn’t doing anything with the WAA data. It is using it to keep a record of the ads that it served,” Santacana explained.
David Boies, counsel for the class plaintiffs, told Seeborg that he didn’t believe that Google doesn’t collect personal information, and that even the non-personal information could identify a person’s mobile device and be linked to a specific individual.
“That device identifier is still a very personal identification. For most people today, their smartphone that they carry around is the closest thing they have to their diary. It contains all of their private information,” Boies said.
Boies read Seeborg copies of Google employees’ internal emails, in which multiple employees expressed that they felt the privacy policy was fooling users into thinking that personal information wasn’t being collected. In the emails, the Google employees also said they were collecting and using personal information.
“This is what they’re saying internally, your Honor,” Boies said, before telling Seeborg that at minimum this evidence creates a triable issue of fact.
“I think, in front of a jury they’re going to have a hard time explaining some of these things,” Boies said.
In his rebuttal, Santacana said that the data in question is just receipts that Google only uses for record keeping purposes, and that Google has never shared a device identifier with any advertiser or third party.
Seeborg took the matter under submission.