Is involuntary data transfer theft?

A federal judge challenged statements from Google on Tuesday that a class action accusing it of illegally hijacking Android users' data to target them with advertising should be dismissed, questioning why she should not consider the practice theft.

"It's sufficient for Google to have unjustly benefited by freeloading on the service," even if users were not harmed by the misappropriation, for the lawsuit to survive, U.S. Magistrate Judge Virginia K. DeMarchi in San Jose said.

The class action is one of several working their way through federal courts, primarily in the Northern District of California, alleging that the Alphabet-owned company's data collection practices are illegal.

Consumers in this litigation are arguing that Google steals their data allowances by secretly programming its operating system to constantly transmit data to and from the company, even when people are not using their devices. The plaintiffs say the information is used for Google's advertising and product development businesses.

During the hearing on the motion to dismiss, Google maintained that users cannot sue over the practice because they were never harmed by it. Taylor v. Google LLC, 20-cv-07956 (N.D. Cal., filed Nov. 12, 2020).

"There's been no interference," said defense attorney Whitty Somvichian, a partner at Cooley LLP. "Whatever amount of data that was transmitted didn't affect [plaintiffs'] ability to send and receive data under their plans."

DeMarchi responded that users do not need to prove they suffered service disruptions for the lawsuit to survive dismissal. It's enough, she said, that Google improperly benefited.

Asked whether the purpose of the data transfers matter, plaintiffs' attorney Ryan Z. Cortazar of Korein Tillery LLC replied that the vast majority of the data collections are to feed Google location information and advertisements onto users' phones.

Google has argued that the practice is necessary to enable common features, including security protocols, GPS and email.

Another federal judge in San Jose dealt with identical issues in a class action alleging Facebook tracked users even after they logged off the platform. The social media giant similarly stated in that case that the lawsuit should be dismissed because users could not show that they were injured by being surveilled.

The 9th U.S. Circuit Court of Appeals rejected the argument. It recognized users' right to sue for unjustly earned profits regardless of harm. In re: Facebook, Inc. Internet Tracking Litigation, 12-md-02314 (N.D. Cal., filed Feb. 8, 2012).

Google also urged dismissal of the lawsuit under a novel theory in contract law that the users never owned the data the company is accused of stealing. Unlike water and electricity, which exist independently of contracts that govern their ownership, Somvichian argued that there's no property right to data allowances.

DeMarchi, who said she does not know how she will rule on the issue, countered, "The cellular data network exists independently of anyone contracting to use it."

The network, Somvichian responded, is only the method of distribution and not a recognized category property.

Cortazar urged the judge to consider the issue under California law, which he said "defines property as anything capable of ownership."

"It further clarifies that anything is capable of ownership if it can be appropriated," he added.

The lawsuit seeks to represent a nationwide class of consumers, excluding California residents, who have used their devices running the Android operating system to access the internet through data plans provided by their mobile carriers.

There is a separate lawsuit in state court with identical statements seeking to represent California users.

In addition to an antitrust complaint from the U.S. Department of Justice that could break up the company, Google has been hit with several privacy related data collection lawsuits. It's been accused of tracking internet use even when browsers are set to private mode and intercepting user activity on applications even after consumers opt out of sharing information.