Jurist asks if Google must define every app it monitors

A federal jurist in San Francisco pushed back Tuesday on allegations that Google did not properly notify users that it tracks usage of competing third party apps to develop rival products.

U.S. Magistrate Judge Susan van Keulen challenged a central argument from plaintiffs that Google misled users about the scope of its data collection practices, suggesting that the Alphabet-owned company does not have to specify in its terms of service every app whose activity it monitors.

"I don't appreciate the distinction you're trying to make," she told Christian Levis, representing the claimants. "An app is an app."

The practice concerns a Google initiative called "Android Lockbox" to monitor and collect data on interactions with non-company apps, such as TikTok, Facebook and Instagram.

Filed months before the Department of Justice and state attorneys general filed their antitrust lawsuits, the purported class action alleges Google leverages its massive data trove enabled by its vast consumer base to quash competition. One example in the complaint claims that the company tracks sensitive personal data in a bid to compete against TikTok by developing a competing video platform called "Shorts."

Citing "a lot of case law in the [Northern District] around this issue," Keulen expressed skepticism about claims of inadequate disclosure over the data collection. She asked if she could rule on whether the notices are sufficient on a motion to dismiss. McCoy v. Alphabet, Inc., 20-cv-05427 (N.D. Cal., filed Aug. 5, 2020).

Google attorney Thomas Gorman responded that a reasonable person would understand the terms of the disclosure, which was consented to by named plaintiff Robert McCoy. He cited the privacy policy stating that the company collects "information to provide better services to all our users" and that some of the information might include "activity on third-party sites and apps" to "develop new products, features and technologies."

"It's objectively plain on the face of the policy," the Keker Van Nest & Peters LLP partner said.

Levis, of Lowey Dannenberg PC, disagreed with Google's claim that the company obtained legal consent from McCoy since, he said, the policy was ambiguously written and lacked specificity. Taking issue with the company's refusal to define "apps" despite its repeated use, he said, "You can't take these broad statements and terms ... and use them to cover all of these different possible events."

"Is it your position that an adequate disclosure would have to identify all the apps specifically?" Keulen asked.

The judge also questioned whether the claims "meet the high bar for alleging invasion of privacy."

Google has maintained that the state has an exceedingly high standard to establish such a violation. It has argued that the breach must expose the victim to an extreme embarrassment or indignity, such as the public dissemination of an HIV patient's test results or the interrogation of a minor about sexual practices.

The disputed data at issue in this case, Gorman said, is not highly sensitive because it only relates to app activity data that's "analyzed in the aggregate to study larger market trends and not to gather dossiers on individual users."

Plaintiffs countered that the data collected can reveal personal information, such as peoples' political views or whether they are tracking a pregnancy.

Asked by Keulen if the data can be tied to a person, Levis conceded that it's anonymized.

Keulen did not say when she would issue a ruling on the motion to dismiss. Plaintiffs will likely be allowed leave to amend even if some of their claims are dismissed.