Thurs. Feb. 11, 2021 |By Maria Dinzo – Courthouse News|
SAN FRANCISCO (CN) — A Ninth Circuit panel signaled a strong reluctance to overturn a settlement that pays no direct money to Google users whose private data was swiped by Google’s Street View cars.
Nearly 10 years in the making, the $13 million settlement U.S. District Judge Charles Breyer approved last March gives $9 million to privacy rights groups, and forced Google to stop harvesting data through street-view vehicles. Google also agreed to destroy all the data it collected and maintain websites to educate consumers about wireless security and data encryption. The rest of the settlement money went to attorneys’ fees and costs.
With a class numbering 60 million, Breyer reasoned that each would receive roughly 22 cents, and that is contingent on whether they could even be identified. Determining class membership would require sifting through 300 million frames of payload data acquired by Google and matching it to numbers on hardware that may no longer exist. The assumption is also that only 1% of the class will avail themselves of the 22 cent payment.
This type of settlement is known as cy pres, a French legal term meaning “as near as possible,” and is typically adopted when it is impractical to distribute money to a class. But one class member, musician David Lowery, still objected. He was joined by nine state attorneys general who filed an amicus brief claiming the settlement would unjustly require class members to “release their claims in exchange for nothing,” and mirrors relief 39 state attorneys general already obtained from Google under a separate agreement in 2013.
Class counsel Daniel Small of Cohen Milstein and Jeffrey Kodroff urged a three-judge panel of the Ninth Circuit panel to uphold the settlement at oral arguments Thursday. “Over 99 percent of the class is better off with the cy pres distribution, which gives them more real benefit,” Small said, adding that the settlement also extends by at least two years the terms Google agreed to in 2013.
Representing the objectors, attorney Adam Schulman with the Center for Class Action Fairness at the Hamilton Lincoln Law Institute said the settlement “drowns out meaningful class recovery” in favor of lesser recompense when class distribution becomes too burdensome.
“Payments to class members are categorically superior to cy pres payments,” he told the panel. “The cy pres option arises only if it isn’t possible to put the funds to the best use.”
“With this case there’s a problem with even trying to identify the class members,” U.S. Circuit Judge Morgan Christen, an Obama appointee, pointed out. “It’s going to be horrendously time consuming and expensive. There’s a strong record here that approach would have been very impractical and inefficient.”
Schulman said it wasn’t impossible, likening the case to Fraley v. Facebook, where U.S. District Judge Richard Seeborg ordered parties to go back to the drawing table on a settlement that offered no direct payments to nearly 125 million users who claimed their names and likenesses were used for promotional purposes without permission for a new ad feature called “Sponsored Stories.”
The revised settlement allowed users to apply for a cash payment of up to $10 each, to be paid from a $20 million settlement fund. It would award remaining funds cy pres to court-approved nonprofits.
Christen said Street View cases pose a unique set of difficulties, as it would be nearly impossible to link individuals to the data Google collected.
“I still don’t see how any of these folks can self identify,” she said.
“It’s almost certain it will cost more than 20 cents to distribute that money,” noted U.S. Circuit Judge Marsha Berzon, a Bill Clinton appointee. “If you’re trying to benefit the class as a whole, there’s no way to do it.”
She said the class members might actually prefer to see the $9 million “go to some useful purpose.”
In other Google news, a federal judge will allow cellphone users to pursue a privacy class action claiming the company secretly tracked and stored their location data without their consent.
The lawsuit alleges that mobile apps like Google Maps, Google Search and Google Hangouts continuously gather data on users, even when their location tracking is turned off, and even when users are not interacting with the apps.
“Google’s alleged collection and storage of location data creates a detailed and comprehensive record of a users’ individual movements over time,” U.S. District Judge Edward Davila wrote in a Thursday ruling that upheld users’ intrusion upon seclusion and constitutional right to privacy claims. “The court, therefore, finds that plaintiffs’ allegations that Google collected and stored comprehensive location data without plaintiffs’ consent are sufficient to show that plaintiffs had a reasonable expectation of privacy in the sum of that data.”
Davila also found they had stated a valid claim for unjust enrichment, though he dismissed their breach of contract claim since Google’s terms of service is non-binding, and merely explains how to adjust privacy settings.
