SAN JOSE, Calif. (CN) — A federal judge chastised lawyers representing Google for splitting hairs during a hearing Thursday over whether the company is illegally collecting private information from users of the Chrome internet browser.
“I’m actually more disturbed by Google’s answer,” Koh said at one point. “I think slicing the baloney that thin is disturbing.”
While Koh’s interjection may not bode well for Google’s attempt to get the case dismissed, which was the purpose of Thursday’s hearing, the judge also acknowledged the issues brought up during the hearing were complex and murky.
“The law is developing so it’s always a challenging field,” Koh said.
The plaintiffs in the class action claim they signed up for Chrome because Google explicitly said they would not have their browsing history sent to Google unless they decided to “sync” the browser with their account.
Despite these assurances, Chrome tracked their web browsing and sent it to Google, in violation of federal law and the newly minted California Consumer Privacy Act.
“This is an important case,” class attorney Jay Barnes told Koh. “Google told users it would protect their privacy as long as they don’t do certain things and they break that promise every day.”
Barnes said the problem is that Google has perverse incentives, in that one part of the company offers the web browser while another part of the company engages in advertising tracking and is therefore incentivized to work around the privacy options offered by the browser.
“They are promising consumers their browser is a safe place to go, while at the same time, the advertising division is hacking their way around privacy provisions in the Chrome contract,” Barnes said.
Google attorney Andrew Schapiro said Barnes had misconstrued the issue, saying that each of the plaintiffs was notified their web browsing history would be tracked when they agreed to the terms of service.
“Each one of these people signed something saying the data they are now complaining about being collected is being collected,” Schapiro said.
The attorney for Google also said the plaintiffs misunderstand how the advertising tracking component of the company works, because it tracks web browsing based on the website not on the browser.
So if a given website allows Google Analytics to track user visits to the site, the user will be tracked regardless of whether they are using a Chrome browser or a Firefox browser, for instance.
Schapiro also took issue with the concept of personal information, saying Chrome users are promised their personal information, such as name and address will be protected, but the same protections do not extend to browsing history.
Barnes said that definition of personal information — that excludes web browsing — flies in the face of federal and California data privacy laws.
“Google promised it won’t be stored unless you turn on sync,” Barnes said. “That goes to the very heart of this case.”
If Koh grants a dismissal, the plaintiffs may or may not get another crack at crafting their complaint. Should she allow the case to go forward, discovery will begin in anticipation of trial.
Koh is expected to rule in the coming weeks.
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