• by Wendy Davis  @wendyndavis, June 30, 2017

Class-action activist Theodore Frank has asked a federal appellate court to scrap Google's $5.5 million settlement of a class-action alleging that it violated Safari users' privacy by circumventing their no-tracking settings.

The settlement "provides millions of dollars to the attorneys, and zero dollars to the class," Frank says in papers submitted this week to the 3rd Circuit Court of Appeals. "This Court should reverse this settlement approval as a breach of class counsel’s fiduciary duty to prioritize class recovery," he argues.

The deal, approved earlier this year by U.S. District Court Judge Sue Robinson in Delaware, requires Google to donate more than $3 million to six schools and nonprofits -- Berkeley Center for Law & Technology, Berkman Center for Internet & Society at Harvard University, Center for Democracy & Technology, Public Counsel, Privacy Rights Clearinghouse, and the Center for Internet & Society at Stanford University. Those groups must agree to use the money for projects related to online privacy. The lawyers who brought the case will receive $1.925 million, but individual Web users won't receive anything.

The litigation stemmed from Google's involvement in the "Safari hack" -- a privacy scandal that came to light in 2012 when researcher Jonathan Mayer published a report stating that Google (and other companies) circumvented Safari's privacy settings and set tracking cookies. Google was then able to target ads to those users based on their Web-browsing activity.

Google confirmed Mayer's report when it came out, and said it had stopped tracking Safari users or would soon do so. News of the hack also resulted in charges by the Federal Trade Commission and other officials; Google ultimately agreed to pay $22.5 million to settle with the FTC, and an additional $17 million to settle with a group of state attorneys general.

Frank argues that the class-action settlement should be vacated for several reasons, including that the money could have been distributed to Safari users instead of to organizations. That type of distribution has happened in other class-actions, including a lawsuit against Facebook over its sponsored stories program. In that case, Facebook created a $20 million settlement fund, which paid $15 each to 600,000 users users who submitted claims.

The activist also contends that the settlement is improper on the grounds that Google had prior connections with at least four of the six fund recipients. "Google is a regular donor to the Berkman Center, Stanford Center, Berkeley Center, and Center for Democracy and Technology," Frank writes.

He contends that Google's promise to donate to those groups in order to settle a lawsuit "merely reflects a shift in accounting entries."

Frank adds: "Defendants will prefer to make payments to third parties to whom they are already donating money rather than payments to absent class members; donations engender good will, and often merely replace or supplement donations that are already in the pipeline."

The activist has challenged other privacy settlements, including Google's $8 million settlement of a lawsuit alleging it "leaked" search users' names to publishers and advertisers through referer headers -- the information that is automatically transmitted by Google to publishers and advertisers. (Some queries, like people's searches for their own names, can offer clues to users' identities.) Frank recently asked the 9th Circuit Court of Appeals to vacate the deal, arguing that search engine users who were affected by Google's practices won't receive any money.