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State AGs sue Google over use and collection of location data

The lawsuit claims Google tracked users for years.
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Posted at 7:23 AM, Feb 07, 2022
and last updated 2022-02-07 11:18:11-05

Google's location tracking services are the subject of lawsuits in Texas, Washington D.C., Indiana and Washington state.

The lawsuits, filed in January, claim Google tracked users for years, often after users specifically turned off 'Location History' or similar features.

"Google's claims to give consumers 'control' and respect their 'choice' largely serve to obscure the reality that, regardless of the settings they select, consumers have no option but to allow the Company to collect, store and use their location data," wrote attorneys for the State of Indiana in their complaint against Google.

"[E]ven if a consumer disables settings that allow their device to transmit location data to Google, Google still continues to estimate a consumer's location by using IP address information."

Google, for its part, has maintained it is acting in good faith, and that its data collection techniques are only used to improve the consumer experience. The company pointed to recent changes which limit the amount of location data is stored by default for new users.

"The attorneys general are bringing a case based on inaccurate claims and outdated assertions about our settings," said Google spokesperson José Castañeda in a written statement. "We have always built privacy features into our products and provided robust controls for location data."

The four lawsuits filed in late January build upon claims made in a 2020 lawsuit filed by Arizona Attorney General Mark Brnovich.

The Arizona case is still working its way through the court system.

A judge ruled in late January that the case can proceed to a jury trial, although the judge dismissed claims that Google uses location data to help sell ads.

Indiana Attorney General Todd Rokita, whose office filed suit against Google in January, said that 'monetary damages' are not necessarily the point of his legal action.

"We want to get Google to change its practices," said Rokita.

"Google knew that consumers had rights under laws, and even under their own policies, to not be tracked in terms of their data. The company made it very difficult for consumers to make that choice, or to indicate to Google that they didn't want to be tracked. And when consumers were able to find the button that could turn off location data gathering, for example, Google continued to do it anyway when the consumer reasonably believed they were not being tracked. That's where the deceit comes in."

Technology experts say Google's techniques are not uncommon.

They are often referred to as 'dark patterns.'

"Dark patterns are design choices that occur in user interfaces that result in the user making decisions they don't necessarily want to make," said Vahid Behzadan, an assistant professor in computer science and data science at the University of New Haven. He compared dark patterns to 'nudging,' a concept first put forth in a 2008 book, "Nudge."

"Nudges are not mandates," wrote the authors of the book. "Putting fruit at eye level counts as a nudge. Banning junk food does not."

The idea has become a fundamental concept in modern behavioral economics.

"Dark patterns are the weaponization of nudging," Behzadan said.

"Companies make the flow of an interaction between a user and a provider so convoluted that the user ends up making a decision that goes against their original objective."

The tactics have gotten the attention of legislators at the state level.

The California Consumer Privacy Act was amended in March 2021 to ban websites from using dark patterns that impede "a consumer's choice to opt out."

Any offending business will get 30 days to remove the illegal code from their website before facing tougher sanctions.

Washington and several other states have considered similar legislation after seeing the success of California's rules.

Action at the federal level has proven tougher.

A bipartisan Senate bill to ban the use of dark patterns by large internet platforms never received a formal vote.

"I'm not entirely sure if a fixed federal legislation is the silver bullet solution to this problem," Behzadan said.

"I know there is a threshold, but that boundary moves around with culture. It's a moving target. So identifying that boundary in a way that's effective, but not disruptive of the larger market, is going to be a very difficult task."

In the meantime, consumers are left to fend for themselves.

"There are a lot of premium subscription services online that make opting out almost impossible," Behzadan said.

"If you decide to delete your Amazon account, the hoops that you need to jump through are so convoluted that many users who want to opt out end up deciding to leave it be. It's not worth spending that much time to opt out of a service."

Rokita said his investigators are looking into other possible legal actions against Big Tech companies over their actions in the marketplace of ideas.

"When you think of us as consumers, you think of buying bread or buying gasoline," Rokita said.

"But we're also consumers of political information.

So when a company like Google or Facebook or Twitter limits consumer choice by limiting political information to one side and not all sides, have they effectively committed a deceptive Consumer Sales Act practice? We're gathering evidence to make an internal calculation of whether or not that's the case. If we determine that it is, then we'll be filing another lawsuit."

Rokita said he is confident his team can prove Google is collecting consumer data in a way that is deceptive and difficult to prevent.

"They're making money off you. Know that," Rokita said. "Know that they are taking every bit of data they can to construct a consumer model, that they then sell to others, so that those others can then sell you things. And that's the best way I can phrase it."