PHOENIX — Lawyers for internet giant Google are arguing it doesn’t legally matter if the buyers of their Android cell phones were misled about the company’s tracking of users.
At a court hearing Friday, attorney Ben Hur asked Maricopa County Superior Court Judge Timothy Thomason to toss out the lawsuit filed against the company last year by Attorney General Mark Brnovich. That lawsuit claims the company has been and is violating the Arizona Consumer Fraud Act by lying to phone buyers about tracking practices and their ability to stop their whereabouts from being sent to Google.
But Hur said the law Brnovich is using to sue applies only in cases where a company made statements that actually led a consumer to purchase an item. In this case, he said, there is no evidence of that.
Hur also urged Thomason to toss out Brnovich’s other theory that the Consumer Fraud Act applies because there was a sale to a consumer: the advertisers. These are the companies that paid Google money every time someone whose location was being tracked clicked on one of their ads.
“That would be a completely novel expansion’’ of the law, he said.
Peter Patterson, a private attorney retained by the state to assist in the case, urged Thomason not to read the law so narrowly.
“Google’s primary business, which is these ad sales, is built on and dependent on this deceptive conduct,’’ he said. In essence, he said, Google is hiding its tracking from phone users because that means more opportunities for the company to track their location — and more profits for the company from advertisers using this information.
And Patterson said it would be wrong to say that no one was relying on misleading information furnished by Google when deciding to purchase a phone that uses Google’s Android operating system, the one the state alleges hides the tracking features.
He said there are plenty of consumers who are concerned about privacy and may have made a decision on which phone to buy based on assurances that the tracking information could be totally disabled. Only later, Patterson said, did they realize it really could not — or it was so difficult to do so as making it a practical impossibility.
Hanging in the balance is the request by Brnovich not only to enjoin what he claims are illegal practices in how the company explains its privacy settings and hides ways to reset them, but also an order to surrender any profits it made from these practices from the $135 billion a year it collects in advertising revenue.
The heart of the lawsuit is Brnovich’s contention that Google has made it “exceedingly hard for users to understand what is going on with their location information, let alone opt-out of this morass.’’
“Even if a consumer or customer turns off their location, they’ve got their location history off, Google surreptitiously is collecting information through other settings, other apps, other web activity,’’ he told Capitol Media Services. “That includes physical location, everything about where you’re going, your doctor’s office.’’
In asking Thomason on Friday to toss, the case, company lawyers made no reference to the tracking practices or argued about their propriety.
Instead, they argued that Brnovich has no basis to sue using the one legal tool provided to him by the legislature: the Arizona Consumer Fraud Act.
“It’s meant to protect consumers from being misled into buying things,’’ Hur said. But he said the practices at the heart of the state’s complaint — how Google does or does not tell phone users how they can and cannot restrict tracking — all occurred after someone already purchased the device.
“He’s not saying that the user relied on the statements about location settings to buy that phone,’’ Hur said. And that, he said, falls outside the scope of state consumer protection laws.
Hur also urged Thomason to reject another of the state’s legal theories. This one suggests that even if the phone itself is not the “sale’’ that fits within the law, consumers subsequently also get other aps from Google that have their own tracking features.
But here, too, Hur said, there is no allegation that anything was actually sold to Arizona consumers.
Patterson, for his part, told Thomason to conclude tht the state laws are designed to protect against all kinds of fraud. And he said that’s precisely what’s at issue here with Google’s conduct.
“They go to great lengths ... to engage in unfair and deceptive acts and practices to harvest their users’ location information and to restrict the ability of users to stop them from doing that, in a deceptive way,’’ he argued.
And Patterson argued the Consumer Fraud Act is not as narrow as Google alleges, citing a Supreme Court opinion which says the law “is designed to root out and eliminate unlawful practices in merchant-consumer transactions.’’
“And that’s exactly what we’re talking about here,’’ he said.
The next step is for Thomason to rule on Google’s motion to dismiss the case now. If he does not, that would pave the way for a full-blown trial where evidence of the company’s practices would be presented to a jury.
One reason Google may want to avoid that relates to what has been the company’s efforts to shield certain internal documents from public disclosure.
While Google surrendered many documents to Brnovich, it has so far been successful in getting Thomason to rule that some of what he got cannot be shared in publicly filed paperwork, at least not for the time being.
But if the case goes to court, the state will want to present all of that to the jury in its effort to prove its case. And that would also make it part of the public exhibits.