• by Wendy Davis  @wendyndavis, December 6, 2017

The advocacy group Electronic Privacy Information Center is urging a federal appellate court to scrap Google's $5.5 million settlement of a class-action complaint alleging that it violated Safari users' privacy.

"Under the terms, Google is allowed to continue its unlawful conduct and the class members receive no monetary relief," EPIC writes in papers that were accepted this week by the 3rd Circuit Court of Appeals. The group adds that the trial judge improperly "rubber-stamped" the settlement, while discounting legitimate criticisms of the deal.

The settlement stemmed from allegations that Google circumvented Safari users' no-tracking settings. Google resolved the class-action claims by Google agreeing 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 will not receive anything.

Class-action activist Theodore Frank challenged that settlement, arguing that it doesn't provide any benefit to the consumers. Frank, who founded the Washington-based Center for Class Action Fairness, recently asked the 3rd Circuit Court of Appeals to vacate the settlement.

Among other arguments, he said the settlement was improper on the grounds that Google had prior connections with at least four of the six fund recipients.

Attorneys general from 11 states -- Alaska, Arizona, Arkansas, Louisiana, Mississippi, Missouri, Nevada, Oklahoma, Rhode Island, Tennessee, and Wisconsin -- also urged the 3rd Circuit to scuttle the settlement, arguing that monetary damages should have been distributed to consumers, not charities.

Google and the class-action lawyers who negotiated the deal urged the appellate court to uphold the settlement.

"This Court and others have repeatedly approved class settlements that give no direct monetary benefit to the class and have recognized that a settlement need not provide direct monetary benefits to the class to be fair, reasonable, and adequate," Google argued.

EPIC argues in its papers that the trial judge should have delved into the whether the charities receiving settlement funds were the best candidates for the funds.

"The lower court should not have approved this settlement without first conducting a rigorous analysis into whether the allocated ... funds will actually benefit the class," EPIC argues.

The group also noted that there are other privacy organizations -- including itself -- that weren't awarded settlement funds, although they had brought FTC complaints regarding Google's privacy practices.

The litigation centered on 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 default settings in order to 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.