By Alicia Curti.
Most consumers in the United States own a cell phone and use it regularly for various purposes, including location and navigation services. Among the most popular cell phones are Google’s Android devices. Some more tech savvy consumers, if they want to be cautious or desire privacy, may know that they can disable the location history feature to limit location tracking. But do consumers know that their location is still tracked and stored in their Google account even when this feature is disabled? Should companies like Google be required to disclose this to consumers? If they do not disclose it, should companies be held liable for data privacy violations?
The Attorneys General of several states have filed suit against Google on these grounds. Arizona Attorney General Mark Brnovich was the first to file such a suit in 2020. On January 25, 2022, Maricopa County Superior Court Judge Timothy Thomason denied summary judgment, ruling that the case should go to a jury to decide whether Google failed to disclose information to consumers such that Google violated Arizona’s privacy laws. Similar cases were filed in other states on January 24, 2022, and are still pending.
LAWSUITS ORIGINATING FROM ATTORNEYS GENERAL AND STANDARDS FOR SUMMARY JUDGMENT
Each state has an Attorney General who serves as an advisor to the legislature and government agencies. The Attorney General also represents the interest of the general public of his or her state. Responsibilities of the Attorney General include issuing formal legal opinions, enforcing state laws, and instituting civil lawsuits on behalf of the state. In Arizona, the Attorney General’s Office has jurisdiction over, among other things, the state’s Consumer Fraud Act. In the case against Google, the Attorney General is acting as the plaintiff on behalf of Arizona’s citizenry and consuming public.
A motion for summary judgment is a request by the moving party—in this case, Google—that the judge throw out the lawsuit on the grounds that there is no genuine issue of material fact. This means that the outcome of the case is so clear that the judge does not believe a reasonable jury could find against the moving party.
In the current case, Google moved for summary judgment. A ruling in favor of Google would have meant that Google did not violate Arizona privacy laws in failing to disclose its location tracking methods. However, because the judge denied the motion, a jury will decide whether Google should be held liable. The lawsuit is currently ongoing.
SIMILAR LAWSUITS IN OTHER STATES AND COUNTRIES
A bipartisan group of Attorneys General has filed similar lawsuits in several states. Texas Attorney General Ken Paxton has filed suit against Google for deceptively tracking user location in violation of his state’s Deceptive Trade Practices Act. The Attorneys General of the District of Columbia, Indiana, and Washington have also filed suits against Google. The complaints allege that from 2014–2019 Google misled consumers into believing that turning off the location history setting disabled location tracking.
The Arizona judge’s denial of summary judgment may be an indication that other state courts will reach similar outcomes. However, the suits filed in 2022 differ slightly from the Arizona suit filed in 2020. These suits focus more on “dark patterns,” which are features such as complicated menus and confusing wording that allegedly intentionally mislead consumers, in addition to the nondisclosure of secondary tracking methods.
In a 2021 case in Australia, the Federal Court found that Google had misled consumers by not properly disclosing its location tracking methods.
IMPLICATIONS FOR ARIZONA CONSUMERS
According to Arizona Attorney General Mark Brnovich, Arizona’s denial of summary judgment for Google is “a great win for Arizona consumers.” Google claims that the Attorney General’s allegations are false and that it has corrected any problem by changing its privacy settings and disclosing more details about its location tracking settings. However, these changes may not be enough to excuse Google from liability for the period of 2014–2019 if its past actions are found to have violated Arizona privacy laws.
It is unknown whether Google will be held liable, but a jury may be sympathetic to consumers. A ruling against Google in a case like this may be the best way to shield consumers from questionable practices by corporations because consumers have limited choices when purchasing mobile devices and using mobile applications. Related agreements are often contracts of adhesion, meaning that consumers have no bargaining power and no say in the contract terms. Consumers can either agree to the terms and conditions or choose not to use the technology, which is of increasing importance in today’s world. Without judicial intervention, this situation gives a lot of control to corporations like Google and very little control to consumers.
In today’s increasingly technological world, consumers are often at the liberty of corporations who produce the devices and software that Arizona citizens use on a daily basis. Consequently, consumers place a large amount of trust in the corporations to use their personal data and information in appropriate ways. Data privacy laws and consumer fraud laws serve to protect consumers from unfair or dishonest practices of those to whom they entrust their information. By bringing lawsuits on behalf of the public, state Attorneys General enforce consumer protection laws. When judges allow such cases to go to a jury, they create opportunities for assertion of data privacy rights, which is good news for Arizona consumers.