(CN) --- A federal judge has advanced the central claims in a sprawling privacy case into whether Google Assistant inappropriately spies on customers, including children.
In a closely watched case that could have implications for other AI assistants, U.S. District Judge Beth Labson Freeman ruled late Thursday night that Google Assistant users have a reasonable expectation of privacy that may be violated when conversations when they are near to the Google Assistant are recorded and used for the purpose of targeted advertising.
“The court is satisfied that plaintiffs allege sufficient facts to show that they frequently had oral communications near their devices under circumstances giving rise to a reasonable expectation of privacy,” Freeman wrote in a 37-page order on Google's motion to dismiss.
The ruling does not mean the seven named plaintiffs have prevailed in the case. Instead, they can proceed with discovery and other important procedures to build their case.
The ruling came at the same time Google attempted to clarify how Google Assistant works, saying it remains in standby mode until it detects “activation words” after which the device records what people say.
“In standby mode, it processes short snippets of audio (a few seconds) to detect an activation,” the company told a trade magazine Thursday. “If no activation is detected, then those audio snippets won’t be sent or saved to Google.”
But Freeman ruled that she isn’t sure this is the case, as plaintiffs argued that conversation they had in private resulted in advertisements for the very products they believed they were discussing in private.
“For example, on Sept. 17, 2018, the Galvan family had a ‘private disciplinary conversation’ concerning personal responsibility,” Freeman wrote. “This confidential conversation was recorded without a hot word.”
Again, Freeman did not rule that this indeed happened. Plaintiffs must prove whether this amounted to a violation of the Wiretap Act in front of a jury or the judge to prevail.
Google argued the plaintiffs were informed of Google’s practices of using recordings for targeted advertising purposes when they agreed to a terms of service, but Freeman said those terms were too vague to be reliable.
“The court finds that while Google’s privacy policy does disclose that it will collect and use information for targeted advertising, it does not sufficiently apprise users that it will use recordings made in the absence of manual activation or a hot word utterance,” Freeman wrote.
But the case still has problems for the plaintiffs. One of the most important parts is proving that Google disclosed the information it collected to a third party, which must happen in order for a violation of the Wiretap Act to occur.
So far, plaintiffs have pointed to disclosure of information to YouTube, which is also owned by Google. Both parties will craft arguments on whether YouTube actually represents a third party or if Google is essentially sharing information internally.
Freeman has expressed skepticism about this part of the case in previous hearings.
“YouTube is Google, not a third party,” she said at a hearing in June. “Additionally, YouTube is even mentioned in the terms of service, so the YouTube claim is a loser.”
Andrea Farah, another attorney representing plaintiffs, noted that while the YouTube incident may not bolster her clients’ targeted ad theory, the plaintiffs also claim any improper collection of customer information without consent is illegal under California and federal law.
“Just because the ad appeared on Google does not mean it didn’t travel through a third party,” Farah said, drawing a retort from the judge.
“Like what, a server? I mean, come on,” Freeman said.
But Farah maintained that “any collection is inappropriate, regardless of the use.” She also noted some of her clients say products they were discussing privately mysteriously appeared in advertisements on platforms not owned by Google.
“One of our clients had an alleged private conversation with his wife and then the product they were discussing appeared on an Instagram page,” Farah said. “Instagram is not owned by Google.”
Instagram is owned by Facebook.
But even when the third party is established plaintiffs have yet another hurdle to overcome — whether their private conversations are being recorded accidentally or intentionally. Google argued the contract allows for mistakes to occur, and Freeman said at the hearing she is inclined to agree.
“The contract does not provide that Google Assistant will turn on when hot words are spoken, but when they are detected,” Freeman said.
Freeman has previously rejected Google’s arguments that any wiretapping is accidental, but has made it clear that the plaintiffs will have to prove that Google was aware its product was unintentionally recording users and decided not to fix it in order to financially benefit.
She also dismissed other claims related to unfair competition and fraud. But Google must face a slew of invasion of privacy claims, and the plaintiffs have impediments to surmount in order to prove their case in court.
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