Plaintiffs seek more than $30 billion in Google privacy suit

SAN FRANCISCO (CN) — A jury heard closing arguments Tuesday on whether Google violated California privacy laws by collecting users’ data even after they opted out of app activity tracking.

A class of more than 100 million users is suing the tech giant for more than $30 billion, claiming the company harvests app data despite telling users that they can disable such tracking. The case focuses on the privacy settings “Web & App Activity” and a sub-setting “supplemental Web & App Activity.”

The jury will have to decide whether Google violated the state privacy law and the California Comprehensive Computer Data Access and Fraud Act.

In closing arguments, David Boies of Boies Schiller and Flexner, an attorney for the plaintiffs, told the jury that Google continued to collect, copy, and use data gathered after users adjusted their privacy settings to toggle Web & App Activity off, in violation of CDAFA.

“The CDFA does not say it may be okay to collect, copy, or use data if you de-identify,” Boies said. “It does not say it’s okay to collect, copy, or use data depending on where you store it or if you need it for your business or for advertising.”

In contrast, Google argued that the claims the plaintiffs are making have high standards, which they cannot meet. Benedict Hur of Cooley LLP, an attorney for Google, said the plaintiffs aren’t owners of the data collection, as it is de-identified, and that Google “certainly thought” they had permission to access the data.

“I think you know what is going on here; this is a gotcha case,” Hur said to the jury. “Parsing through six-year-old emails, disclosures … This is not a case where there is actually wrongful conduct, not a case where data was leaked, not a case where Google was deceptive. There is no harm in this case.”

Boies argued that Google never got users’ permission to collect and use data collected once web activity was toggled off. He also said Google was “pushing a control story,” adding that the company “falsely told users that they could control, see, and delete the data Google collected from their activity.”

“None of that is true,” he said. “This is a situation where people were given a purported choice, but no control.”

In rebuttal, Hur said it is impossible to include all the information about data usage on a single page and that Google puts the most important facts up front, while providing links to disclosures for more detailed information.

“That is a sign of effective design,” he told the jury. “Just imagine if you have a giant page of six-point font in legalese, no one will be able to read all that.”

Hur also highlighted what he called the “are you sure” page, which pops up if a user toggles off web activity and lets users know that Google will continue to collect certain types of data.

“Google tells users the moment they turn sWAA off, they can learn about the data Google continues to collect and why. … Google tells users exactly what plaintiff’s lawyers say they didn’t,” he said.

He went on to say the case focuses on de-identified data and that Google doesn’t re-identify users based on device ID.

However, Boies claimed that the data Google collects is never really de-identified.

“Whether it’s deidentified or reidentified, they did not get permission to collect this data. If they collect, copy, or use it, which they did, that is a violation,” he said.

For the plaintiff’s claims of violation of privacy, Boise said the evidence shows that Google’s actions are “highly offensive.”

“Taking, coping, and using plaintiffs’ private information without consent, I think that is highly offensive,” Boies said.

In contrast, Hur said there was no harm or loss and that Google did not contribute to any harm or loss.

“Are you kidding me? There is no highly offensive conduct here,” he said to the jury.

Plaintiffs are asking for more than $30 billion in compensatory damages for the class of more than 100 million Google users. Boies explained that compensatory damages consider the number of devices, the value of the data collected, and the number of months the plaintiffs assert Google was violating the law.

The jury will also get to decide if they want to award punitive damages; however, the amount would be determined at a later date.

Boies said the evidence was clear that Google “knowingly misled” millions of users for multiple years and that its conduct is the kind of conduct “that is important to deter.”

“If you decide that this is conduct that is not acceptable, that needs to be stopped, you have the power to do that,” he told the jury.

Hur called the compensatory damages “bogus” and said actual damages should be zero dollars, as they cannot be based on “speculation, guesswork, or conjecture.” He also raised speculation about Boies’ motives in asking for billions in damages.

“Some of you know what he’s doing. He’s anchoring. If you throw out a really big number, the smaller numbers look even more reasonable. That is what he is doing. I hope that does not work on you,” he said. “Makes you wonder, ‘Can I trust anything this lawyer says?’”

Representatives for either party did not immediately respond to a request for comment.

U.S. District Court Judge Richard Seeborg, a Barack Obama appointee, presided over the trial.

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