SAN FRANCISCO (CN) — A federal judge on Thursday demanded more details on how Google allegedly collects data on consumers’ use of more than a million software applications without obtaining explicit permission from users.
“You’ve got to do more than, ‘Maybe this is going on,’” U.S. District Judge Richard Seeborg told an attorney for a proposed class of app users in a virtual hearing Thursday.
Seeborg was referring to claims that Google uses “secret scripts” in a software development kit for app makers. Plaintiffs say Google covertly harvests the data to make its targeted advertising business more profitable. Google maintains that it only collects pooled, anonymized data to help app developers understand how consumers use their apps.
“This is a tool so The New York Times can see on an aggregated anonymous basis how popular their articles are,” Google attorney Eduardo Santacana told the judge.
Lead plaintiff Anibal Rodriguez sued Google in July last year, claiming the company harvests app data despite telling Google users that they can disable such tracking through a “Web & App Activity” feature.
In opposing Google’s motion to dismiss the lawsuit, plaintiffs’ lawyers argued that Google conflates its “Google Analytics” service for app developers with its Firebase software development tools. Those tools purportedly contain scripts that allow Google to upload private data directly from a user’s mobile device.
“They don’t explain to users that users can’t actually opt out of this,” plaintiffs’ attorney Amanda Bonn said.
Santacana insisted that every app user consents to the data collection practices. Google requires all of its app developer partners to obtain consent from users. Some apps let users opt out of data collection while others, like Chinese e-commerce giant Alibaba, inform users about it in their privacy policies. In the latter case, a user can choose not to install the app if they do not want their data shared, Santacana explained.
“There’s no question that they consented,” Santacana said.
The plaintiffs argue that Google’s terms of service state that users can “control the information collected by Google” on sites and apps through its “My Activity” feature, which allows users to disable data collection.
“Google is telling these users that their browsing activity on apps is not going to be saved,” Bonn said.
Google’s “My Activity” page states that a “Web & App Activity” feature must be toggled on for Google to store information on a user’s app activity. The preference is supposed to apply to all apps that use Google services. Google defines “services” in its privacy policy as “products integrated into third-party apps.” The plaintiffs say any reasonable consumer would interpret that to include apps that use Google’s Firebase software development kit.
“Their privacy policy defines services as products embedded in third-party apps, but they argue such products are ‘not Google services,’” Bonn said.
Santacana countered that language in the “Web & App Activity” description is not “specific enough” to overcome disclosures that every user agrees to when they download and use applications that include the “Google Analytics for Firebase” service.
Turning to claims that Google uses “secret scripts” to collect user-specific app data for targeted advertising, Santacana said the plaintiffs offer zero facts or evidence to back up that assertion.
“They say, ‘I know it’s a secret, but I won’t tell you how I know,’” Santacana said of the “covert scripts” claim.
Judge Seeborg appeared to agree with Google’s position that the lawsuit lacks sufficient facts to support the allegation.
“It is not very well spelled out what the basis for your conclusion is that this activity may be going on,” Seeborg said. “You’re saying it does, but you’re not giving me a whole lot of basis to conclude you have facts to support it.”
Bonn said the plaintiffs can amend their lawsuit with new information from experts showing that Google secretly collects users’ app data to make its targeted advertising profiles more profitable.
After about 90 minutes of debate, Judge Seeborg took the arguments under submission.
Google is also fighting a separate class action in federal court in San Jose claiming it collects web browsing data for Chrome users without permission. A motion to dismiss is also pending in that lawsuit.
The privacy litigation comes at a time when technology companies are changing their data collection practices in response to shifting consumer preferences and new data privacy laws in California, Europe and elsewhere.
Apple plans to roll out a new privacy control this spring that will prevent apps from tracking users without express permission. Google also vowed this week not to develop new ways to follow users’ online activity after it phases out existing ad-tracking technology for its Chrome web browser.
Follow @NicholasIovino
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