Judge Likely to Advance Privacy Suit Involving Google Assistant

SAN JOSE, Calif. (CN) --- A federal judge indicated she is likely to let at least some invasion of privacy claims against Google proceed in a case where plaintiffs argue the technology company is allowing its Google Assistant product to record conversations even when it’s not activated. 

“Your first theory is going to get through,” U.S. District Court Judge Beth Labson Freeman told the plaintiffs' attorney Hayley Reynolds during a remote motion to dismiss hearing Thursday. 

However, Labson Freeman also made it clear to plaintiffs that there remain significant hurdles to making a compelling case that Google willingly allowed its technology to record customers even while inactive and then sold the contents of those recordings to targeted advertisers. 

“Miss Bali, I think you have laid some significant hurdles that is going to make this a hard case to make,” the judge told Google attorney Sunita Bali. 

Bali predicted the plaintiffs will encounter difficulties proving Google Assistant may have been listening to conversations not by mistake but out of more nefarious motives. According to the plaintiffs, they saw advertisements for products they discussed in secret later appear on YouTube, which is owned by Google. 

“YouTube is Google, not a third party,” said Labson Freeman, noting that fact is fatal to their targeted ad theory that Google Assistant spied on users to be able to use conversations to sell them tailored products from third parties. “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,” she 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. 

“You have to allow for mistakes to be within accepted conduct according to the contract,” Bali said. 

Labson Freeman said 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,” Labson Freeman said. 

In other words, Bali said, if the Google Assistant detects one of the words people use to activate it, it may then unwittingly record conversations.

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. 

For other claims of false advertising, the plaintiffs must show they relied on Google’s explanations of its privacy policy when making the purchase.

“All I can say is that your clients are going to have to truthfully testify as to their considerations at the time of purchase,” Labson Freeman said. 

However, the judge is required to interpret plaintiff claims charitably at the motion to dismiss phase, so the case will not get tossed at this stage. Discovery will commence, but it’s clear plaintiffs have an arduous path toward trial and a successful verdict. 

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