Judge denies AG’s demand for summary judgment in Google fraud case

By: - January 26, 2021 2:21 pm

Photo by Kristina Alexanderson | Flickr/CC BY 2.0

An Arizona judge rejected a request from Arizona Attorney General Mark Brnovich for a partial judgment in an ongoing consumer fraud lawsuit against Google, ruling that the state did not have sufficient evidence.

Instead, the case should move forward with jurors, the judge wrote. 

Last May, Brnovich filed a heavily redacted lawsuit alleging that Google’s data-collection processes had violated the state’s Consumer Fraud Act. What has followed has been a legal battle over the release of records related to the case. 

The Attorney General’s Office began investigating Google after an Associated Press article in 2018, and Brnovich has been part of a 48 state antitrust investigation into Google since 2019. Brnovich was also critical of Google at the recent annual meeting of the Arizona Republican Party

“There are a myriad of factual issues that must be resolved at trial,” Maricopa County Superior Court Judge Timothy Thomason said in his ruling. 

“We always knew this would be an uphill battle,” AG spokesman Ryan Anderson said in a statement to Arizona Mirror. “You don’t take on one of the largest and most powerful companies in the world and expect it to be a walk in the park. We will continue to hold Google accountable and pursue the case forward with the path the judge has provided.”

The AG has filed more than 270 exhibits in the case, many of which remain redacted or sealed, and the litany of filings appear to have been detrimental to the AG’s case. 

“If there truly was no material issue of fact, it is hard to imagine why the State would inundate the Court (with) this volume of additional factual material,” the ruling says. Additionally, Thomason ruled that Brnovich relied too heavily on internal emails and “anecdotal evidence” to prove deception on Google’s part. 

“The State also relies, in large part, on internal Google communications, none of which actually say that consumers were misled,” the ruling says. 

Some of those communications include observations from Google’s own software engineers who, when the Associated Press article dropped, were found to have been confused by how the company’s location history and privacy settings worked. 

“I agree with the article,” an unnamed Google employee wrote in an internal email. “Location off should mean location off; not except for this case or that case.” 

Google has since said they have heard user feedback on privacy controls and called the quotes from the emails “cherry picked.” 

At the heart of the debate is if Google deceived users in Arizona with how it uses two specific features, Location History and Web App and Activity, referred to LH and WAA respectively. 

The AG claims that Google deceived users by telling them that turning LH off meant it was not collecting data, even though WAA was still collecting user information across multiple applications and LH was still collecting some data that the company would then use for monetary gain. 

Google contended that nothing in its disclosures suggested to the average user that its data collections, including location data, would stop if LH was turned off. They also further argued that it would be unreasonable for a person to believe that disabling LH would prevent Google from storing any kind of location data. 

“WAA does not save the places the user goes on the user’s timeline or otherwise store continuous data about where users go with devices; instead, it records data regarding users’ interactions with Google products or services while signed into their accounts,” the ruling says. 

Three months before the AP article was published, a researcher in Berkley noticed how her phone was still inferring her location despite disabling all the location features she could find. She inferred that it was the Google apps talking to each other, something WAA is utilized for, was responsible. 

The AG contended that Google not disclosing that WAA saved location data in November 2018 was a deceptive practice, but Google argued that a “reasonable user” would be able to understand the user agreement stating that WAA collects such data. 

“It is unquestionably true that Google’s disclosures were not as clear as they could have been. In fact, Google did not qualify its disclosures as it now does,” the ruling says. 

However, the judge felt the disclosures were still adequate. 

“Moreover, in setting up an account, users received a disclosure that, when they interact with Google products like YouTube or Google Maps, Google may process location information and associate it with their Google accounts,” the ruling says. 

Some of the disclosures were not entirely adequate, though, with one only being able to be accessed when WAA is re-enabled, meaning many people would never even see it. Another disclosure for LH never mentions WAA. 

“A reasonable fact finder (sic) could find that a reasonable, or even an unsophisticated, consumer, would understand that at least some location information is collected through means other than LH,” Thomason ruled. 

A representative from Google refused to comment on the ruling. 

The case has drawn international attention, with the Australian Competition and Consumer Commission asking for documents from Brnovich’s case late last year during its own inquiry into Google.

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Jerod MacDonald-Evoy
Jerod MacDonald-Evoy

Reporter Jerod MacDonald-Evoy joined the Arizona Mirror from the Arizona Republic, where he spent 4 years covering everything from dark money in politics to Catholic priest sexual abuse scandals. He brings strong watchdog sensibilities and creative storytelling skills to the Arizona Mirror.