• by Wendy Davis  @wendyndavis, January 25, 2022

Arizona's top law enforcement official can proceed to trial against Google on claims that the company misled consumers about the privacy of their location data.

The ruling, issued by Maricopa County Superior Court Judge Timothy Thomason, comes in a lawsuit brought in May of 2020 by state Attorney General Mark Brnovich. He accused Google of “widespread and systemic use of deceptive and unfair business practices,” in order to obtain location data about users.

Brnovich claimed Google violated the Arizona Consumer Fraud Act, which prohibits companies from deceiving consumers in connection with the sale or advertisement of merchandise. 

The allegations stemmed from a 2018 Associated Press report that Google stores location data gleaned from some services, including search and maps, even when users have attempted to prevent the data collection.

The Associated Press reported that even when the "Location History" setting is turned off, Google collects and stores some location data unless people turn off a separate setting -- "Web and App Activity." After that report came out, Google revised a “help” page by adding language informing people that turning off Location History doesn't affect other location services, and that some location data may still be saved.

The revelations in the AP report are also at the center of lawsuits against Google filed Monday by attorneys general in Washington, D.C., Indiana, Texas and Washington state.

Brnovich's lawsuit focused on alleged misrepresentations to three groups of people -- smartphone buyers, users of apps like search and maps, and advertisers that purchase targeted advertising.

Google urged Thomason to rule in its favor without first conducting a trial.

Among other arguments, Google said none of the alleged misrepresentations were made in connection with the sale or advertisement of smartphones, and therefore couldn't have violated the state's consumer-protection law. 

Thomason rejected that contention, essentially ruling that the dispute involved factual questions that could only be answered by holding a trial.

“The state has ... alleged and presented evidence of deceptive conduct that is directly in connection with the initial sale of devices,” the judge wrote Tuesday, referring to Nexus and Pixel phones, and Android devices. “As such, Google is not entitled to summary judgment.”

Google also said Brnovich shouldn't be able to pursue claims that the company deceived users of its search engine or maps app, arguing that those services were free and therefore outside the scope of the state's consumer protection law.

But Thomason said in his ruling that whether the services were “free,” or whether Google was effectively selling those services to consumers in exchange for data, was a factual question that required a trial.

“There is a tenable claim that the consumer is provided a service in exchange for information data,” Thomason wrote. “Therefore, there is a plausible claim that the exchange is in connection with the sale of merchandise.”

Thomason did award Google summary judgment on one point: He ruled that Brnovich could not proceed to trial on a claim that Google sold targeted advertising based on location data allegedly obtained through deception.

“The state’s theory is that Google deceives one group of people -- users of its services -- about the collection and use of their location data, and then uses that data to secure ad purchases from an entirely separate group of people -- advertisers,” the judge wrote.

Those allegations -- even if proven true -- would not prove that Google violated the state's consumer protection act, the judge said.

A Google spokesperson said Tuesday that the judge “made a significant legal ruling against the Arizona Attorney General."

The spokesperson added: "Unfortunately, just before today's decision, four other state attorneys general rushed to file similar lawsuits making similarly inaccurate and outdated claims.”

Earlier in the proceedings, Brnovich urged the judge to rule against Google without first conducting a trial. Thomason rejected that request last year.