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Google wants to keep data tracking secret

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Internet giant Google is asking a judge to block a bid by Attorney General Mark Brnovich to publicly disclose documents he got from the company during his investigation of how it uses private information.

Attorney Jean-Jacques Cabou contends there’s no basis for Brnovich’s complaint in the first place, arguing that anything the company is accused of doing does not run afoul of the Arizona Consumer Fraud Act. That is the law that the attorney general is using to claim Google is defrauding Arizona consumers by collecting private information and then storing and sharing it with others.

But Cabou says there can be no fraud because Google was not selling anything to Arizona consumers. And he said Arizonans knew that Google applications and phones using Google’s Android operating system were tracking them, then they agreed to it.

Cabou told Maricopa County Superior Court Judge Timothy Thomason in new filings that he should decide the issue of the validity of the case first. He said if the lawsuit is tossed, the issue of what Google documents become public becomes legally moot.

Mark Brnovich

Mark Brnovich

But Assistant Attorney General Beau Roysden told the judge that the public has a right to know — and immediately — what his office unearthed in its investigation of Google. And he said that the company’s mere assertions that pretty much all 1,200 pages of what it has produced should not be released “do not establish that the materials are confidential, nor are they a basis for sealing information so designated.”

And he said Google has never explained how it would be harmed by disclosure.

“Nor has Google shown that its interest — whatever it may be — overrides the presumption of public access,” Roysden wrote. “On the contrary, consumers have a strong interest in learning how their own data is surreptitiously collected and used by Google.”

Central to the lawsuit, Brnovich is arguing, is that Google last year collected $135 billion from advertisers for detailed information about its users, including where they are located. That information helps those advertisers target users in specific geographic locations.

The problem with all that, Brnovich charges, is that the tactics the company uses to “surveil” its users’ locations are “willfully deceptive and unfair.” And that, he said, violates the state’s Consumer Fraud Act.

He also says it is difficult — and in some cases impossible — for users to stop Google from tracking their travels even after they turn off the “location services” on their devices, calling it “a fake button.” If nothing else, Brnovich said that the default setting for this should be “off.”

Brnovich wants a judge to order Google to surrender any profits it has made “by means of any unlawful practice.” He also wants “full restitution” to Arizona customers and for the company to pay a fine of up to $10,000 for each willful violation of Arizona law.

Finally, he wants a court order barring Google from engaging in similar practices in the future. That would cover not just Google manufactured devices but also its Android operating system and its popular search engine.

Cabou has a few charges of his own.

“Google learned through information it received pursuant to the Arizona Public Records Law that the investigation was encouraged by Google’s long-time adversary, Oracle,” he told the judge.

More to the point, Cabou said Brnovich is arguing the documents at issue need to be disclosed because of “so-called public interest in the case.” But he said that the investigation itself was “improperly publicized” locally and nationally before the lawsuit was filed.

Capitol Media Services, using documents obtained through public records, wrote in 2019 that Brnovich had launched an inquiry into “a major tech firm” about whether it was tracking their movements.

The name of the firm to be investigated, located in a contract with an outside law firm for assistance, was blacked out. But the contract with an outside legal firm was signed just a week after The Associated Press reported that Google was tracking users’ locations even after people had opted out.

Cabou even has something to say about that contract, pointing out the fee arrangement with the Washington law firm of Cooper & Kirk, gives that firm a percentage of what it could recover “or extract a settlement from Google, and nothing at all if they did not.”

The contract caps total outside legal fees at $50 million, not counting what might be recovered in restitution for Google clients.

Ryan Anderson, spokesman for the attorney general’s office, called Google’s response to the request for records — and the complaint about the contingency fee arrangement — “hyperbolic and absurd.” He said to reach that amount, a settlement or verdict would have to exceed $1 billion.

And what of the issue about Oracle?

“I’m not sure what Google’s point is other than to obfuscate reality,” Anderson said.

`We filed a consumer fraud lawsuit against the company because Attorney General Brnovich believes Google should be held accountable for their deceptive behavior,” he said. “I’ve got news for Google: so does much of the Free World.”

The most immediate legal issue involves those documents Brnovich got from Google.

Roysden is relying on the issue of public interest in the case as he tells the judge that the information his office gathered during its investigation “cannot be sealed.” He said there is a strong presumption of public access.

And Roysden said just the fact that Google is trying to keep the documents from public view is, in itself, telling.

“Google’s attempt to hide its wrongdoing from the public only demonstrates that Google’s actions have been willful and intentional,” he told Thomason.

“Google cannot articulate a compelling interest for sealing this information, much less one that overrides the public’s strong interest in the facts surrounding the case,” he said. “Neither can Google establish prejudice beyond embarrassment.”

A status conference on the case is set for next month.

Brnovich has acknowledged that others gather information about Arizona consumers without their consent and sell it to third parties, particularly credit bureaus. But this, he said, is far different.

“They’re collecting vast amounts of data, including location services, where you’re at, how long you’re at a store and everything else, which is much more invasive than, let’s say, someone running your credit report,” he said.

And Brnovich noted that consumers have a right to request a copy of their credit report to find out exactly what is being reported on them and ask the company to remove erroneous information. That is not an option, he said, with the kind of tracking being done here.

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