ARCHIVES: This is legacy content from before Marketing Dive acquired Mobile Marketer in early 2017. Some information, such as publication dates, may not have migrated over. Check out the new Marketing Dive site for the latest marketing news.

Google class-action suit will strengthen consumer fears about mobile

Recent revelations about Google?s data collection practices for mobile phones continue to reverberate as evidenced by a new class-action suit brought last week against the company by two Android phone users.

The suit claims that the Android phone users were unaware that Google was tracking their locations and did not knowingly consent to the tracking. The suit seeks an injunction against Google requiring the company to stop tracking its users as well as damages.

?The suit very likely will lend credence to consumers? fears about mobile phones, although in this particular case, the information is being collected and stored on the devices themselves, and not generally transmitted to the carriers or device manufacturers,? said Andrew Lustigman, principal attorney and owner of The Lustigman Firm P.C, New York.

Over the past couple of weeks, several reports have clearly laid out the extent of both Google and Apple?s mobile data collection, which surprised many.

The reports showed that Android phones, iPads and iPhones are keeping precise track of users? whereabouts while Apple devices are also storing location-based data about customers for a significant period of time and not storing it as securely as many would like.

Both companies have since released information about their practices regarding location data collection and laid out the steps they are taking to address them (see story).

Google, Mountain View, CA, released a statement last week in response to the initial uproar over the data collection but is not commenting on the suit.

The statement pointed out that all location sharing on Android is opt-in by the user. The location data is collected to provide a better mobile experience and any data that is sent back to Google location servers is anonymized and not traceable to a specific user.

Scrutiny to continue
The suit is not likely to harm Google?s brand image, said Jason Kaslofsky, an attorney at Arent Fox LLP, Washington.

?They will likely continue to face scrutiny on privacy issues but, that is the result of having popular products and being market leaders,? he said.

At issue in the suit brought last week in the U.S. District Court?s Eastern District of Michigan is Google?s data collection practice for its own purposes.

?Google tracks users? locations on its own, separate, apart and in addition to the information it collects in conjunction with other businesses that develop applications for Google,? the suit claims. ?This action is not about the applications? collection of information on users; rather, it is specifically in objection to Google?s own collection of user location information.?

The suit also states that Google?s unauthorized tracking activities have caused ?irreparable injury.?

?Once Plaintiffs began carrying their cellular phones using Google?s Android operating system, Google began tracking their locations,? the filing says. ?This has happened in the past and continues to happen all across the U.S.

?If Google wanted to track the whereabouts of each of its products? users, it should have obtained specific, particularized informed consent such that Google consumers across America would not have been shocked and alarmed to learn of Google?s practices in recent days,? it says.

The timing of the class-action suit is interesting because the tide in the court system may be turning against class-action suits.

Class-action suits face hurdle
Last week, the Supreme Court ruled that AT&T?s arbitration contract clause was enforceable and could preclude its customers from initiating or joining consumer class actions like this lawsuit (see story).

?The Supreme Court?s ruling puts the future of consumer class actions like this one in doubt,? Mr. Kaslofsky said. ?If Google?s contracts have similar arbitration clauses, these types of cases might be over before they begin.

In the past, the courts have generally punished companies for their failure to disclose what data they are collecting and how it is being used, per Mr. Lustigman.

Similar suits could be on the way.

However, it will likely be some time before the courts make any decisions.

?These types of suits tend to take years before they even get to a stage where substantive issues are being addressed, so it may be some time before we see anything noteworthy happen,? Mr. Koslofsky said.

The revelations about Google and Apple?s mobile data collection practices could also result in interested parties requesting this information.

?We expect a sizable expansion in the number of situations where this stored information is requested and read, whether by police, employers, spouses, phone thieves, or opposing parties in lawsuits,? said Jonathan Ezor, an attorney at The Lustigman Firm.

?These situations may also provide encouragement for Congress to enact new legislation governing the collection and storage of location-based data,? he said.

At the very least, the suit serves to continue to put a spotlight on the issues surrounding mobile phones and privacy.

?People don?t generally consider themselves to be carrying around tracking devices storing their every move, but they apparently are if they?re carrying an Android or iOS smartphone,? Mr. Ezor said. 

Click here to view the suit.

Final Take
A discussion of the future of class-action lawsuits