Google to pay $62 million for tracking users without consent

SAN JOSE, Calif. (CN) — Google will pay $62 million to numerous nonprofits on behalf of people who say the company violated their constitutional and common law privacy rights by tracking and storing their location data without their consent. 

U.S. District Judge Edward Davila approved the final, multimillion-dollar settlement in court Thursday, calling it "an extremely successful result."

Although Google assured users their data wouldn't be tracked if they disabled the location history feature on their devices, an Associated Press investigation found otherwise, the plaintiffs say in their 2018 class action.

According to the investigation, the company continued to access and store geolocation information of people who turned off their location history, which the plaintiffs say violates the California Invasion of Privacy Act and California’s Constitutional Right to Privacy and constitutes an unlawful intrusion upon seclusion.

The agreement requires Google LLC to pay $62 million into a non-reversionary cash fund that will be used by up to 21 nonprofit organizations for support and defense of the class members’ privacy rights, according to a March 25 joint brief.

The fund will also cover $18.6 million in plaintiff attorney fees, unreimbursed expenses of $151,756.23 and awards of $5,000 for each of three settlement class representatives, making up 30% of the settlement. (The benchmark typically is 25%.)

Attorney Ted Frank, whom The New York Times once called the "leading critic of abusive class-action settlements," represented three class members who objected to the decision to give the award to nonprofits like the American Civil Liberties Union, which he argued could use the funds for “ideological purposes.” 

For example, he argued Thursday, organizations could use the money for efforts to protect people’s location and medical information as a way to “promote abortion rights” or make funding decisions based on race.

Frank said the settlement instead should select “non-political organizations” to represent the “politically diverse class.”

He asked to Davila to interpret Ninth Circuit precedent differently to make the fund distributable to all class members, rather than to the organizations. The judge laughed. 

Davila said that since the court acts as the fiduciary for the class, it can demand reports from class members on how they use the funds awarded. 

When Frank said it’s unlikely that the court would take time to do that, Davila replied, “My clerks are eager to do whatever task is appointed to them.”

The judge saw no reason to change his mind approving the settlement.

Overruling Frank's objections, he said the agreement meets Ninth Circuit precedent for avoiding collusion. However, he gave a note of caution to plaintiff attorney Tina Wolfson, noting that some of the organizations have connections to her counsel, which could give the public pause about their interest in funds going to their connections.

“That’s an optic that’s not good," Davila said.

"We did not pick any organizations based on any relationships," Wolfson replied. "Our intent was to put the money to good use.” 

To Frank, the judge said, “I always enjoy when you come in. That’s what I love about the law — we grow and we try to wrestle with any issues that come up.” 

Davila approved a preliminary version of the agreement in November 2023 that applies to all U.S. residents who used one or more mobile devices and whose location Information was stored by Google while location history was disabled at any time during the class period from 2014 through 2023.

In October 2021, Davila granted only some of Google’s motion to dismiss the case and denied the plaintiffs’ attempt to reopen discovery processes. He only granted the plaintiffs’ alternative breach of contract claim with prejudice, denying the motion on all other counts.

The named plaintiffs were Napoleon Patacsil, Michael Childs, Najat Oshana, Nurudaaym Mahon and Noe Gamboa.

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