In a move that could affect many legal battles over online privacy, the Supreme Court is raising questions about whether Google should have faced a federal class-action lawsuit for allegedly leaking the names of people who used its search engine.
On Tuesday, the court officially called for legal briefs addressing whether the Google users who sued suffered the kind of concrete injury that warranted a lawsuit. The court's move came days after a hearing at which Justice Neil Gorsuch spontaneously questioned why allegations that Google leaked a user's name warranted a lawsuit.
“Do we know that he was injured?” Gorsuch asked, referring to one of the plaintiffs who sued Google over the alleged data leakage.
The battle dates to 2010, when Google was hit with a class-action alleging it violated users' privacy by including their search queries in "referer headers" -- the information that's automatically transmitted to sites users click on when they leave Google. Some queries, like people's searches for their own names, can offer clues to users' identities. (Google no longer transmits search queries when people click on links in the results.)
Google agreed to resolve the allegations by donating $5.3 million to six nonprofits and schools -- including at least one that previously received money from Google. The settlement also requires Google to pay more than $2.1 million to the attorneys who brought the lawsuit.
Ted Frank, founder of the Center for Class Action Fairness, challenged the deal. He argued that it should have been rejected because it didn't compensate Google's users.
His challenge was heard by the Supreme Court on October 31. At the hearing, several of the court's conservative judges expressed skepticism toward the settlement. Chief Justice John Roberts asked an attorney for the plaintiffs whether he thought it was “just a little bit fishy” that the money was going to an organization that Google previously supported.
But some of the judges, including Gorsuch as well as the more liberal Stephen Breyer, questioned whether the people who sued should have been allowed to proceed at all.
Gorsuch wanted to know why leaking a name was actionable. “Is there any evidence that his personal information, for example, wasn't already available through the white pages and otherwise published so that there is no injury in fact?” he asked.
Breyer referred to allegations by Anthony Italiano, one of the two class representatives named in the case. He alleged that his searches included his name paired with the word “bankruptcy,” as well as his name with “foreclosure,” and his name with his home address.
“What concrete injury was there because somebody might discover through Google that he made those searches?” Breyer asked. “I don't quite see how this is some kind of secret or private or information.”
The court's newest judge, Brett Kavanaugh, suggested that disclosing people's search history could prove harmful. “I don't think anyone would want the disclosure of everything they searched for disclosed to other people. That seems a harm,” he said during the argument.