Google should brace for 'long slog' litigation in case over Android location-tracking, Arizona attorney general says

28 May 2020 8:00 am by Mike Swift

phone tracking

Arizona’s chief law enforcement official wants Google to know he’s girding for “the long slog” of litigation after filing suit over location tracking of consumers, litigation which alleges the search and advertising giant violated state consumer-protection law.

“I don’t give a crap about how big you are, about how powerful. You might be the most innovative company in the tech world, but it doesn’t mean you can make your own rules,” a combative Attorney General Mark Brnovich told MLex in an interview today, in which he compared the suit against Google to a duel between “Luke Skywalker and the Death Star.”

“If history is any guide, what we assume is that Google will hire a bunch of lawyers, will hire a bunch of lobbyists; they will try to use their political influence to shut this down,” Brnovich replied when asked about the likely next steps in the litigation filed yesterday in Arizona Superior Court in Maricopa County. “We’re ready to fight the long slog.”

Google’s growing “dominance” in the digital advertising space was such, Brnovich said, that he felt he had to take action now, even with Arizona participating in a coalition of 51 US states and territories that are investigating Google’s advertising and other business practices for possible antitrust violations. The US Department of Justice also has an active antitrust probe of Google, while the US Federal Trade Commission reached a $170 million privacy settlement with Google’s YouTube last year.

While the Arizona suit doesn’t use antitrust terms like “dominant” and “power,” Brnovich used those terms to describe Google’s use of location data today.

“At the end of the day I can’t wait on anyone else, whether it’s the federal government, whether it’s the FTC, whether it’s my [state attorneys general] colleagues, I can’t wait for anyone, because as Google’s dominance gets bigger, if we don’t’ stand up now we might not be able to,” the Republican attorney general said.

The case over location tracking “is a separate track” from the multistate antitrust probe, and “this is really about the consumer protection point of view,” said Brnovich, 53, who has served as Arizona’s attorney general since his election in 2014. But he added that “information is power” and he finds it “troubling” how much of it Google has. “Google at this point has become where they know more about you than your spouse does,” he said.

Tough talk at the start of litigation showing a plaintiff’s resolve against a strong opponent is not particularly surprising. But previous state attorneys general who have taken on Google alone, such as former Mississippi Attorney General Jim Hood, have faced a difficult legal battle against the Mountain View, California, tech giant. In Hood’s case, he soon found himself defending claims that he was a pawn of the Motion Picture Institute of America, a long-term Google foe, which Google said had “budgeted $500,000 a year towards providing legal support” for “state prosecutors to take up the fight against [Google].”

Google sued to block Hood’s investigation, and the two-year dispute went up to the US Court of Appeals for the Fifth Circuit and stymied the Mississippi probe. Google ultimately dropped its suit in 2016. Brnovich said a Google spokesman’s comment Wednesday that Arizona was using lawyers from private firms working on contingency was an attempt to change the subject of the actual allegations.

“They don’t want to address the underlying allegations of the complaint. Instead they want to focus on attacking the messenger. To me, that speaks volumes about the mindset of Google,” the attorney general said. “They have run attack ads against people. We know they are lobbying up; we know they are lawyering up, so I’m going to do what I can to protect Arizona consumers.”

The thrust of Arizona’s 48-page complaint is that Google’s “deceptive and unfair acts” make it “difficult if not impossible” for consumers to understand the conditions in which Google will collect their location data through an Android smartphone or other Google services, location information that is central to Google's advertising business. Google, the Arizona suit claims, is driven by a “seemingly relentless drive to collect as much user location information as possible.”

“You shouldn’t have to go through a bunch of screens or a bunch of options in order to turn off tracking, in order to have some tech giant track when you go to the doctor,” Brnovich said today. Android users should have “one button where, if you don’t want to be tracked, you’re not tracked.”

“It shouldn’t be too much to ask a company with so much revenue to make it easier for people to opt out” of location tracking, he added.

Google has not, of course, had its chance to respond in court. The company may well argue in response to the Arizona complaint that the complicated series of permissions that control location tracking provide a more granular level of privacy control for consumers, a level forced by regulators in the European Union or elsewhere who opposed a single on/off switch for location tracking.

Google is also likely to argue that with the newest version of Android, now running on more than 2 billion smartphones, users can choose to share location data with apps only while the apps are in use, with the operating system prompting users when an app has location tracking running in the background.

There is probably another shoe to drop in the case. Because so much of the complaint is redacted, there are few specifics about what the Arizona complaint describes as the “web of interrelated settings that relate to Google's collection of a user's location-related information” which are the basis of the state’s claims that Google violated the Arizona Consumer Fraud Act.

The complaint's allegations are based on "extensive testimony" from Google employees given under oath, and the attorney general is expected to ask the Maricopa County court to unredact at least some information that Google has asserted is confidential.

During a two-year investigation that began in 2018, a significant amount of activity has already occurred behind the scenes. Google lawyers have met with the Arizona attorney general's office to answer questions, and the company responded to evidence-discovery requests from Arizona. Now, the dispute will move more out into public view.

Asked for a reaction to Brnovich’s comments today, Google spokesman Jose Castaneda repeated a comment he offered yesterday that the Arizona suit "mischaracterized our services," and that Google has "always built privacy features into our products and provided robust controls for location data."

Judge Christopher Coury, a judge with 10 years of experience in the Maricopa County court, has been assigned the case. Coury has been hearing Superior Court civil cases in Phoenix since 2018.

If Google is found to have willfully violated Arizona’s Consumer Fraud Act, it could face civil penalties of up to $10,000 per violation, but Brnovich’s suit is also seeking a permanent injunction requiring changes to Google’s business practices, disgorgement of profits from its alleged legal violations, and restitution to Arizona consumers who use Android phones or have a Google account.

While Brnovich declined to estimate what Google’s legal exposure might be in the case, “they literally made billions of dollars through” the conduct the state is alleging. “They are this huge, dominant market player,” he said.

—With reporting by Matthew Newman in Brussels.

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