Claims That Google Shares Data Look Shaky

SAN JOSE, Calif. (CN) — A class action against Google claiming the company illegally disclosed private data during app purchases does not look likely to survive, after a federal judge expressed reservations about the lawsuit.

U.S. District Judge Beth Freeman told the plaintiffs that she did not believe there was sufficient evidence of actual injury for the case to survive a motion for summary judgment during a hearing on Wednesday.

"I appreciate these issues come before the court, but I don't know that you have the evidence to survive summary judgment," Freeman told the lawyer for lead plaintiff Alice Svenson. "I am inclined to look favorably on the plaintiff's definition of sharing, but you have to prove there was an actual injury as a result of the breach of the privacy agreement."

The plaintiffs and judge circled back to this point over and over, which is essentially that even if the facts as put forward by Svenson are true, it does not constitute a contract claim if she did not suffer harm as a result of the alleged privacy breach.

Svenson is claiming that when she bought an app through the Google Play store, Google's payment service divulged private information including her email address to a third party — in this case the app developer YC Droid — without her permission and in violation of the privacy portion of the terms of service.

Svenson bought an email messaging app for $1.77 in May 2013, during which the Google payment-processing system made her information available to the third-party app developer, the plaintiffs claim.

However, the plaintiffs concede there is no proof that the app developer ever received Svenson's private information, let alone used it.

Susan Fahringer, attorney for Google, said this lack of actual injury is fatal to the breach of contract claim and asked Freeman to dismiss the case.

"The utter absence of evidence here fails across the board," Fahringer said. "There is no reason whatsoever for this case to go forward."

Freeman seemed inclined to agree with this interpretation.

However, Svenson's attorney Rafey Balabanian attempted to draw a parallel between his client's case and some of the large data-breach cases currently before judges, including the case involving insurance giant Anthem's data breach currently before U.S. District Judge Lucy Koh, also in San Jose.

"In this case, it was found that the insurer was not maintaining the information in the manner that they promised they would and in accordance with industry standards," Balabanian said.

But Freeman wasn't buying it, drawing a subtle but substantial distinction between the cases.

"The difference is that in that case, the party actually has the information," the judge said. "As opposed to the hacker just there ready to push the button, there has been a completed action to obtain the information."

Freeman said that just by making the private information available, Google can't be held liable unless the private information is actually taken by a third party. It doesn't have to be then used necessarily, but it at least has to be taken.

"You're not saying that they could've sued Anthem before the hack," Freeman asked rhetorically. "The hack is the actual injury and in this case we don't have that."

Balabanian said there is case law involving companies who jeopardize customers' private information but where no actual hack occurs where breach of contract claims held.

"In those cases, the imminent risk of future injury is sufficient for the purposes of standing," Balabanian said.

"I'm skeptical, but I will look forward to reading them," Freeman said of the rulings Balabanian cited during oral argument.

This lack of injury continued to be front and center as the sides argued during the class certification portion of the hearing.

However, the judge said class certification will ultimately be moot if Google's motion for summary judgment is granted.

Freeman did say that if the plaintiffs find others who may have similar claims and can assert actual injury or have the support of better facts, the possibility of amending the suit and proceeding along those lines still exists.

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