Judge Advises Some Google Documents Should Be Sealed In AG’s Consumer Fraud Lawsuit

By Terri Jo Neff

A consumer fraud lawsuit filed last year by the Arizona Attorney General’s Office (AGO) against Google was the subject of an important court ruling last week, when a Maricopa County judge appointed to review some of the global tech giant’s internal documents issued an advisory ruling in support of sealing some records.

The June 7 advisory ruling was made by Judge Sally Schneider, who was appointed to serve as a Special Master to review various documents which Google wants sealed or redacted. This keeps Judge Timothy Thomason, who will preside over the jury trial on the AGO’s complaint, from coming into contact with documents which may not be admissible in the case.

Attorneys for the parties will be back in Maricopa County Superior Court on June 22 for a status conference with Thomason at which time he is expected to accept Schneider’s advisory ruling. No trial date has been set yet in the case, but Thomason has already scheduled two pretrial conferences for later this year.

The lawsuit authorized by Attorney General Mark Brnovich in May 2020 alleges Google violated Arizona’s Consumer Fraud Act by misleading users of its apps about the company’s data collection and location tracking policies.

National attention -and that of Brnovich- was first drawn to the company’s tracking policies after the Associated Press published an article about the issue in 2018. Public records show more than 250 exhibits were shared between Google and the AGO within six months of the lawsuit being filed.

Since then, several of the documents have been released to the public, providing a better understanding of the steps Google took to ensure it could readily track its customers, even though some employees pointed out concerns with such policies.  Other documents have been redacted or sealed based on Schneider’s recommendation.

It is unclear what records or topics were involved in Google’s most recent motion to seal -listed as number 4- but Schneider is advising Thomason to keep something under seal. A redacted version of whatever Schneider believes should not be sealed will not be available until Thomason makes a formal ruling.

Brnovich alleges Google has violated the Arizona Consumer Fraud Act by leading users to believe they can opt-out of location tracking. He contends the company “exploits other avenues to invade personal privacy…It’s nearly impossible to stop Google from tracking your movements without your knowledge or consent,” he said.

The AGO also contends Google is continuing to track and collect location information via a user’s WiFi connectivity.

“Google makes it so a user cannot opt out of this form of location tracking unless the user actually completely disables the WiFi functionality on his or her device…meaning the device cannot connect to the internet through WiFi,” the lawsuit now states. It also alleges location data can be obtained by Google even if a user’s Android phone is shut off.

According to court records, over 80% of Google’s 2019 revenues—$135 billion out of $161 billion total—came from advertising enabled by the company’s collection of detailed information about its users, including their physical locations. Thomason ordered Google last month to continue its “reasonable, good faith investigation into what documents or materials it has with respect to profits from the Arizona user location data.”

Google has issued few public statements in response to the lawsuit. The most recent noted the company is looking forward to setting the record straight about its activities.

“The Attorney General has gone out of his way to mischaracterize our services,” according to the statement. “We have always built privacy features into our products and provided robust controls for location data.”

Some of the Google documents obtained by the AGO played a big role in legal action taken against the company in Australia.

Officials with the Australia Competition and Consumer Commission are seeking an unspecified amount of civil penalties against Google after a judge ruled earlier this year that the company led users who were setting up new Android devices to believe only the “location history” setting allowed location information to be tracked.

The Australian judge determined Google knew it could still collect a user’s location data without their knowledge via a default setting under “web & app activity,” even if the location history setting was turned off.