After setbacks, Google privacy suit moves forward

SAN JOSE, Calif. (CN) — A privacy class action against Google can finally move forward after a hearing on a third motion to dismiss on Thursday.

After listening to arguments from both sides, a federal judge seemed to indicate she saw the case’s merit.

“I fear that the case will go forward,” U.S. District Court Judge Beth Labson Freeman, a Barack Obama appointee, told Google’s attorneys near the end of the hearing. Freeman has not yet made any formal ruling on the motion.

The hearing marks a heel-face turn from Freeman’s last hearing on the matter, where she said the case didn’t have legs to stand on.

Freeman dismissed the case but allowed the plaintiffs to improve their lawsuit. Now, the case is back.

Thelawsuitclaims Google used Illinois residents’ facial recognition data without their consent, violating the state’s Biometric Information Privacy Act. Residents of the Prairie State say Google wrongfully used their photos, which the website Flickr made available to third parties, to improve the accuracy and reliability of its facial recognition technology.

Lead plaintiff Steven Vance is seeking monetary damages on behalf of other similarly situated residents, as well as an injunction that prevents Google from using the facial data, bars them from continuing to collect the plaintiff’s facial data and requires them to delete it.

Freeman laid out her most recent thoughts at the beginning of Thursday’s hearing.

“The goal is that the claim is either in or out this time. That’s the goal,” the judge said. She added that it was frustrating to see several iterations of the same lawsuit all go to the same graveyard.

Arguments in the courtroom revolved around whether the Illinois plaintiffs could even sue the California-based company for these claims (extraterritoriality), as well as if Google benefitted from using the facial data without compensating its originators (unjust enrichment).

First, the court addressed extraterritoriality. In its motion, Google argued the lawsuit does not claim the company ever interacted with the plaintiffs or anyone else in Illinois to obtain the facial data set it used.

Instead, it says it acquired data from IBM, a New York-based company, who sourced them from Flickr. The absence of any direct interaction should defeat the claim based on the extraterritoriality doctrine, the company insisted.

“To think this all took place in Chicago instead of, say, Google headquarters in California, defies common sense,” said Lauren Tsuji, a Perkins Coie attorney representing Google.

Judge Freeman, however, did not agree.

“You’re asking me to look at the evidence in the light that is most favorable to Google," she said. “I cannot do that.”

Freeman added that based on the revised lawsuit, she thought the lawsuit may have merit this time around.

“I think you have crossed the line into having a claim for extraterritoriality,” Freeman told attorney Scott R. Drury of Drury Legal, who represented the plaintiffs.

Next, Freeman addressed the plaintiff’s unjust enrichment claims.

In California, unjust enrichment claims allow a person to recover benefits conferred upon another without the first person receiving fair compensation. For example, if a contractor performs work on a property and is not paid, they may bring a claim for unjust enrichment against the owner of the property.

“Unjust enrichment just requires that they benefit unfairly without the victim’s consent,” Drury said.

“Stealing someone’s biometrics would not be morally reprehensible,” Freeman said.

“I would disagree, your honor,” Drury said. “Stealing someone’s biometrics without their consent, I would say, is indeed morally reprehensible.”

“You could not allege Google stole their photos,” she responded.

Nonetheless, Freeman appeared sympathetic. To survive a motion to dismiss, she said, one must merely show that claims are probable.

“It’s not a high bar,” she explained.

Drury further argued that an injunction was necessary in this case because his clients would continue to suffer damage to their privacy unless one was put in place. That is, their facial data would still be out there.

At the end of the hearing, the judge added that this could be the final chance for the privacy class action.

“If the facts are that nothing important with the dataset happened in Illinois, then this case is over,” Freeman said.

But the lawsuit has so far proven tenacious, having survived two other motions to dismiss.

The first of these motions was terminated in February 2021 for procedural reasons: Google filed a motion to dismiss and a motion to stay but did not indicate in which order it preferred the court consider the motions.

In March 2024, Freeman examined a second motion and dismissed the claim but gave plaintiffs the chance to improve their lawsuit. Apparently, the third dismissal-motion hearing was the charm.