• by Wendy Davis  @wendyndavis, July 13, 2020

Google is asking a judge for permission to immediately appeal his recent decision allowing search users to proceed claims that the company wrongly transmitted their queries to publishers.

“Without further clarification, the court’s order suggests that anyone who enters any search terms -- 'Britney Spears,' for example, or 'French toast recipe' -- can demonstrate constitutional injury so long as the search provider later discloses those search terms, even though no one’s identity is tied to the search,” the company writes in papers filed Friday with U.S. District Court Judge Edward Davila in the Northern District of California.

Google's request comes one month after Davila ruled in a long-running battle that search users have the right to proceed with claims that Google violated a federal law protecting the privacy of electronic communications.

The legal fight dates to 2010, when web users sued Google for allegedly violating their privacy by including search queries in "referer headers" -- the information that is automatically transmitted to sites that 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.)

In 2013, Google agreed to settle the lawsuit by donating $5.3 million to six nonprofits and schools, and to pay more than $2.1 million to the attorneys who brought the lawsuit.

But that settlement faced a challenge by Ted Frank, founder of the Center for Class Action Fairness, who argued that the deal didn't adequately compensate Google's users. The challenge went to the Supreme Court, which returned the case to Davila and directed him to decide whether the users experienced the kind of injury that warranted a federal lawsuit.

Google then asked Davila to dismiss the case altogether, arguing that the information transmitted in referrer headers doesn't identify anyone -- even “vanity searchers” who conduct searches on their names.

“A search for a person’s name, if disclosed to a third-party website operator through a referrer header, reveals nothing about the searcher because the third party cannot possibly know who conducted the search,” Google argued in papers filed earlier this year. “It could be anyone.”

Davila rejected that argument in June, ruling that the users could proceed with their lawsuit.

“Congress has ... identified a concrete privacy interest in communications stored with electronic communication service providers -- even if those communications cannot be linked to the user,” Davila wrote last month. “After all, information need not be personally identifying to be private.”

Google now wants to take the matter to the 9th Circuit Court of Appeals. The company argues that the complaint doesn't spell out how transmitting users' search queries effectively unmasked those users to outside publishers.

“No individual’s privacy can be harmed if no one knows whose words were revealed,” Google writes.

The matter is scheduled for a hearing in front of Davila on September 24.