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Judge: Google didn’t promise to stop collecting user data

The dismissal of two claims in a lawsuit over Google's harvesting of app activity data coincided with an Arizona judge's order advancing a separate suit over the company’s location data collection practices.

SAN FRANCISCO (CN) — When Google gives Android phone users the option to turn off app activity tracking, it doesn’t promise to stop collecting their data and selling it to third parties, a federal judge ruled Tuesday.

“Plaintiffs could not have reasonably expected they were entering into a contract simply by adjusting their account settings,” U.S. District Judge Richard Seeborg wrote in a 7-page ruling Tuesday.

Seeborg threw out two of five claims in a proposed class action accusing Google of harvesting Android users’ app data despite telling them they could disable such tracking in their user preferences.

The lawsuit brought by lead plaintiff Anibal Rodriguez claims statements like “You can control what data gets saved to your account” in options menus formed the basis of a contractual promise not to collect app data when users hit the “off” button.

In its motion to dismiss, Google argued its “Activity controls” merely explained “what can be saved to a user’s account” and did not make any binding promises.

Seeborg ultimately sided with Google’s position, concluding that contractual promises only appeared in Google’s terms of service, not its user account preferences.

“Changing settings does not create a contract,” Seeborg wrote. “Instead, plaintiffs created a contract with Google by agreeing to its Terms of Service.”

Seeborg also dismissed another claim accusing Google of violating the California Invasion of Privacy Act. He wrote that the plaintiffs failed to adequately explain how Google surreptitiously seizes users’ data, a prerequisite for advancing that claim.

“What is nowhere to be found is a specific description of how Google is secretly intercepting plaintiffs’ data,” Seeborg wrote.

Google did not seek to dismiss three other claims from the lawsuit alleging invasion of privacy, intrusion upon seclusion and violation of the California Comprehensive Computer Data Access and Fraud Act.

Seeborg previously denied the Silicon Valley behemoth's motions to dismiss those claims, finding the plaintiffs adequately described how Google purportedly collects users’ app data without consent.

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.

At a court hearing this past March, a Google attorney told Seeborg that app developers like The New York Times use the data to determine how popular certain offerings, such as specific articles, are among users.

Attorneys for the proposed class say Google gives its users the false impression that they can “opt out” of sharing that data with Google and third-party app developers.

Google is fighting two other federal class actions claiming it falsely promised not to collect users’ web browsing histories when they used the Chrome browser’s “incognito mode" and when they chose not to sync Chrome browsers with Google accounts.

Seeborg’s decision comes one day after three states and the District of Columbia sued Google over claims that it has been tracking mobile device users’ locations even after they turn off location sharing.

Also on Tuesday, an Arizona judge partly denied Google’s motion for summary judgment in a similar lawsuit brought by the state of Arizona. Maricopa County Superior Court Judge Timothy Thomason ruled that a jury should decide if the company failed to properly disclose that it continues tracking users after they disable location sharing.

The judge rejected Arizona’s theory that Google’s purported misconduct relates to the sale of advertising or merchandise, but he said evidence that Google profits from the collection of location data may still be presented to a jury.

“The sale of advertising to third parties is part of the entire ‘story’ of why and how Google (allegedly) engages in the deceit,” Thomason wrote. “As such, sales of advertising could be relevant at trial.”

Google and its attorney Eduardo Santacana did not respond to requests for comment on Judge Seeborg’s ruling, but Google did address its location data collection practices in a blog post Tuesday. The company said the lawsuits “mischaracterize and inaccurately describe the settings and controls we provide users over location data.”

Google said geographic data is “integral” to how smartphones work and that it allows Google to help users navigate around traffic jams, find misplaced phones and locate nearby businesses like pizza shops.

The company added that it auto-deletes users’ location data after two years, allows users to erase their location data or stop saving it at any time and offers a Google Maps “incognito mode." The company also promised that it never sells users’ location data to advertisers or anyone else.

Alexander Frawley, a lawyer with Susman Godfrey who represents plaintiffs in the lawsuit over Google’s app activity data collection, did not immediately respond to an email requesting comment Tuesday.

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