The Beginning of the End: Consumer Privacy Protection in Arizona
Google is facing a first-of-its kind consumer fraud lawsuit in Arizona, though experts are unsure how successful the lawsuit will be.
Global tech giants, particularly Facebook, Google, and Amazon, have found themselves embroiled in political controversy almost as rapidly as they rose to the top of the tech industry. Facebook CEO Mark Zuckerberg testified before Congress on foreign meddling in the 2016 presidential election, Jeff Bezos has been criticized for profiting off the pandemic as Amazon’s profit margins grew exponentially due to shelter-in-place orders, and Facebook and Google are facing antitrust lawsuits brought by several states and the Federal Trade Commission. In particular, Google is facing an unprecedented lawsuit in Arizona that, if successful, could completely change the standard of how tech companies collect location data in Arizona.
The Allegations
The Associated Press published a bombshell article on August 13, 2018 titled “Google tracks your movements, like it or not.” The article explained that while Google users appear to have full control over what location data Google collects and stores, Google will still surreptitiously collect location data in subtle ways. For example, if a user turns off the “Location History” setting, Google will still collect location data via the “Web and App Activity” setting, which collects timestamped location markers that can be mapped to show a user’s movements with accuracy within a square foot. The “Web and App Activity” setting is default enabled, and the setting name does not suggest anything to do with location data. The article showed that users may have a false sense of security when they disable what they believe to be all location data collection.
The article spawned an investigation by the Arizona Attorney General’s Office, which ultimately led to a complaint filed on May 27, 2020 in Maricopa County Superior Court. The complaint alleged that Google’s “widespread and systemic use of deceptive and unfair business practices to obtain information about the location of its users, including its users in Arizona, which Google then exploits to power its lucrative advertising business,” violates the Arizona Consumer Fraud Act (ACFA), which illegalizes deceptive and unfair practices, which the deceiver intends the consumer to rely on, “in connection with” the sale or advertisement of merchandise. Google deceives users to gather their location data, which they then sell to third-party advertisers to create targeted ad campaigns based on user location, according to the complaint.
Timeline of the Suit
Google responded with a motion to dismiss for failure to state a claim. The motion did not necessarily deny that they used “deceptive” practices to collect location data, but rather emphasized that their deception was not sufficiently connected to any sale or advertisement of merchandise to meet the ACFA standard of deception “in connection with” the sale or advertisement of merchandise. The motion also argued that when users purchase or consent to terms of use for Google products, they are not technically being deceived, because they agree to Google’s data collection practices by using the products.
Brnovich responded to the motion by arguing that the ACFA language is purposefully broad. The intentionally deceptive activity need not actually deceive people, and the deception need not precede or induce the sale of merchandise in question for the deception and sale to fall within the statutory meaning of “in connection with.” Brnovich also argued that a user agreeing to data collection under certain circumstances does not give Google license to acquire that data under different circumstances, which would constitute deceptive conduct.
In October, Maricopa County Superior Court Judge Timothy Thomason denied Google’s motion to dismiss, allowing the lawsuit to move forward. However, Judge Thomason cautioned that Brnovich has an uphill battle in making his case, stating, “The facts might ultimately demonstrate that the deceit is far too removed from the sales or advertisements to satisfy the statutory requirement.” He also noted that there is no legal precedent to support the complaint’s allegation that there is a sufficient connection within the meaning of the ACFA between deceiving the Google user and the sale or advertising of merchandise to third-party vendors.
Looking to the Future
The profitability of consumer data is no secret, and discussions have been simmering around the ethics and policy of tech companies making hundreds of billions of dollars off of our information. However, lawmakers and legal professionals have been slow-going at tackling these issues. Brnovich’s lawsuit is one of the first attempts in Arizona to temper a tech giant’s data collection practices. Ensnaring the company with the ACFA is an interesting strategy, as an intuitive interpretation of the statute suggests a direct connection between deception and sale, i.e. a seller deceives a buyer to believe that the product for sale is higher quality than it actually is, which the buyer relies on when he is induced to purchase the product. The complaint stretches the statutory language to its limits, and while it was enough to survive a motion to dismiss for failure to state a claim, the facts simply may not sufficiently support the allegations.
An important policy decision is also in play. Should the burden of protecting consumer privacy fall on individual consumers, or should tech companies empower consumers to choose what data they share? Contract law emphasizes objective manifestations of agreement, and if consumers technically have the ability to turn off their location data, however laborious and impractical, it may be difficult to show that the user did not actually agree to their location data being collected.
It’s likely that this lawsuit will be overshadowed by the recent antitrust lawsuits against Facebook and Google by the FTC and Attorneys General from nearly every state. It’s also likely that it will end in settlement or that discovery won’t yield facts sufficient to back up the complaint’s allegations. But the lawsuit is a landmark one for Arizona consumers, and if anything, it will make a statement that Google’s deceptive practices are known to state leadership, and this is just the beginning of litigation to protect consumer privacy.
