Google loses in court, faces trial for collecting data on users who opted out

Plaintiffs contend that “Google should be disgorged of all its profits derived from serving any ads to (s)WAA-off users. Google “denies that any (s)WAA-off data is saved to a user’s marketing profile, which precludes it from personalizing advertising to a WAA-off users.” Google says the data is “intended to be shared with only developers through GA4F for their own analysis.”

Jury can evaluate Google’s “pseudonymous” claims

Google, as the judge writes, purports to treat user data as pseudonymous by creating a randomly generated identifier that “permits Google to recognize the particular device and its later ad-related behavior… Google insists that it has created technical barriers to ensure, for (s)WAA-off users, that pseudonymous data is delinked to a user’s identity by first performing a ‘consent check’ to determine a user’s (s)WAA settings.”

Whether this counts as personal information under the law is a question for a jury, the judge wrote. Seeborg pointed to California law that defines personal information to include data that “is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.” Given the legal definition, “a reasonable juror could view the (s)WAA-off data Google collected via GA4F, including a user’s unique device identifiers, as comprising a user’s personal information,” he wrote.

As Seeborg wrote, “Google insists that users knew and consented to its tracking practices,” specifically the collection of pseudonymous data. Seeborg rejected this claim. To a reasonable user reading Google’s disclosures, “it is unclear Plaintiffs were consenting to the data collection at issue,” he wrote.

Another argument from Google is that plaintiffs have no reasonable expectation of privacy in anonymized, aggregate data. But information doesn’t have to be personally identifying in order to be private, and “whether the data collected by Google constitutes personal information is not, as Google suggests, a foregone conclusion,” Seeborg wrote.

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