Opponents Ask Judge to Reject Google ‘Wi-Spy’ Settlement

SAN FRANCISCO (CN) – Lawyers for the state of Arizona and a consumer claiming his private data was stolen by Google mapping vehicles urged a federal judge Friday to reject a settlement that would pay zero dollars to consumers.

After nearly a decade of litigation, attorneys reached a deal to settle a multidistrict class action claiming Google vehicles not only collected images for its “street view” maps feature but also swiped emails, passwords and other personal data from unsuspecting users of unsecured Wi-Fi networks in what became known as the “Wi-Spy” scandal.

(AP Photo/Virginia Mayo, File)

Google agreed to pay $13 million to privacy rights groups, stop harvesting data through street-view vehicles, destroy all the data it collected, and maintain websites to educate consumers about wireless security and data encryption. The privacy rights groups would get about $9 million after $4 million in attorneys’ fees and costs are deducted.

During a hearing Friday, a lawyer representing the state of Arizona urged U.S. District Judge Charles Breyer to reject the settlement as patently unfair.

“The dollars in the settlement belong to the class,” Arizona Solicitor General Oramel Skinner told the judge.

Nine state attorneys general filed an amicus brief in the case last month arguing the settlement would unfairly require class members to “release their claims in exchange for nothing.”

Defending the settlement, class counsel Daniel Small countered that the Ninth Circuit has repeatedly found this type of settlement, known as cy pres, appropriate when it is impractical to distribute money to a class. Cy pres is a French legal term meaning “as near as possible.”

Identifying each class member would require sifting through 300 million frames of payload data acquired by Google and matching it to numbers on hardware that was likely replaced or discarded years ago, Small said.

“The vast majority of the class is not going to be able to file a claim,” Small insisted. “They’re not going to know their MAC address, a number on the physical router that is now 10 to 13 years old.”

The class size is estimated at 60 million people, based on a Canadian investigation that found Google’s mapping vehicles acquired the personal data of 6 million Canadians. Because the U.S. population is 10 times the size of Canada, the U.S. class size is projected to be 60 million.

Even if class members could be identified, Small argued the payouts would be so miniscule as to create very little benefit for the class.

If $13 million were distributed to 60 million class members, each person would receive about 22 cents.

Representing objecting class member David Lowery, attorney Theodore Frank told the judge that 22 cents is better than nothing.

That argument didn’t sit well with the judge.

“It’s got to be some meaningful relief for people to want to actually invoke the process,” Breyer said. “Twenty-three cents is not meaningful relief.”

Frank also argued that class members should be allowed to self-identify. Based on the number of claims filed in similar class actions like the Anthem data breach litigation, only 1% to 2% of class members are expected to file claims, Frank said. Such a result would enable those who file claims to receive as much as $5 each.

Small replied that enabling a small number of class members to get paid while most class members receive nothing would violate standards that forbid class counsel from supporting terms that advantage one absent class member over another.

Settlement opponents also claim the deal provides no benefits beyond what was negotiated in a 2013 agreement with 39 state attorneys general. Under the terms of that deal, Google already agreed to stop harvesting personal data, destroy data that was collected and create educational resources for consumers.

Small argued the proposed settlement provides more relief because it will extend how long Google is bound by those terms by at least two years. The 2013 deal was set to expire after 10 years in 2023. Conditions in the proposed class action settlement last for five years, through 2025 or later.

Oramel of Arizona argued that allowing class members to file claims and receive some money is preferable to giving $13 million to third parties and lawyers.

“Treating all the class members the same with no preference and giving them all an option to file a claim and get money is fair, and it’s how it should work,” Oramel said.

Representing Google, attorney Brian Willen questioned whether it is fair to let anyone file a claim when there is no practical way to determine if that person is actually a member of the class.

“The only way to make a claims process administratively feasible is to allow a number of people who cannot and do not know if they are class members file claims,” Willen said.

After more than an hour of debate, Judge Breyer took the arguments under submission.

Privacy rights groups that would receive money under the terms of the proposed settlement include the Center on Privacy & Technology at Georgetown Law, Center for Digital Democracy, MIT’s Internet Policy Research Initiative, World Privacy Forum, Public Knowledge, Rose Foundation for Communities and the Environment, the American Civil Liberties Union Foundation and Consumer Reports.

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