• by Wendy Davis  @wendyndavis, April 11, 2023

Two Android users are asking a federal appellate court to revive a privacy lawsuit over Google's “Lockbox” program, which allegedly collects information about consumers' use of other companies' apps.

“A reasonable consumer could easily conclude that Google’s monitoring of every action on their Android devices and its collection of sensitive, identifiable personal data from all of their apps is a 'highly offensive' invasion of privacy,” attorneys for Florida residents Marie Hammerling and Kay Jackson write in papers filed Monday with the 9th Circuit Court of Appeals.

They are asking the 9th Circuit to reverse U.S. District Judge Charles Breyer's decision dismissing the lawsuit.

Hammerling and Jackson brought a class-action complaint against Google in the Northern District of California in 2021, largely based on a report in The Information that said Google drew on data about people's use of outside apps, like TikTok, for competitive purposes. Google reportedly only collects such data from users who agree to share “usage and diagnostics” information; the tech company says in an online support page the company uses that data “to improve products and services, like Google apps and Android devices.”

Last year, Breyer threw out the lawsuit on the grounds that the allegations in the complaint, even if proven true, wouldn't establish liability on Google's part.

For instance, one of the claims was that Google engaged in “intrusion upon seclusion” -- a broad privacy concept that involves an intentional and “highly offensive” intrusion into a private place. To support that claim, the complaint alleged that Hammerling visited the Wish app and viewed a foot massager as well as size 9 women's slippers, and that she visited the Groupon app and viewed deals for discounts on anti-inflammatory meal subscriptions.

Breyer said in his ruling that this type of data wasn't “sufficiently personal” to render its collection highly offensive.

“Hammerling’s searches of a foot massager, slippers, meal subscriptions ... are better characterized as data collection of 'routine commercial behavior,' not considered a highly offensive intrusion of privacy in this district,” he wrote.

Among other arguments, attorneys for Hammerling and Jackson now say Breyer wrongly dismissed that claim.

“Plaintiffs easily alleged a 'highly offensive' practice,” they write, adding that the data allegedly collected included sensitive and identifiable personal information.

The complaint “makes clear that Google was collecting data about every aspect of their lives -- Plaintiff Hammerling’s financial institution, car model, interest in the New York Times, use of SmileDirectClub for teeth straightening, descriptions of specific consumer products and coupons she viewed,” class counsel writes.

“If Google had gathered this information about plaintiffs by videotaping them going about their everyday lives, the District Court would almost certainly have had no trouble finding such conduct 'highly offensive,'” the lawyers add.