• by Wendy Davis  @wendyndavis, May 8, 2023

Google is urging a federal appellate court to reject Android users' attempt to revive a lawsuit claiming the company misappropriated bandwidth by collecting app-related data.

In papers filed Friday with the 9th Circuit Court of Appeals, Google says the Android users are attempting “to manufacture liability” for common practices.

“Like all modern cell phones, Android devices cause data to be transmitted from the device to various servers,” Google argues. “These data transmissions on Android devices include transmissions to and from Google servers to enable a range of useful functions, from ensuring that devices have up-to-date security protocols to enabling features of Google applications like Maps and Gmail.”

The company's argument comes in a battle dating to November of 2020 by Joseph Taylor and other Android users, alleged in a class-action complaint that Google misappropriated their cellular data by collecting app-related information when the apps weren't in use.

The allegations drew on Vanderbilt University professor Douglas Schmidt's 2018 paper about passive data transfers, which said idle Android devices sent data to Google hundreds of times each day.

U.S. District Court Judge Virginia DeMarchi in the Northern District of California dismissed the lawsuit at an early stage last year, essentially ruling that even if the allegations were proven true, they wouldn't show that Google misappropriated the smartphone users' "property."

“A utility customer may plausibly be said to consume a discrete quantum of water, gas, or electricity in a manner that makes that specific quantum of water, gas, or electricity unavailable to any other customer,” she wrote. “The allegations of the complaint do not plausibly establish that use of a cellular data network involves the exclusive consumption of a quantum of data.”

She also said the complaint's allegations, even if true, wouldn't establish that Taylor and the others were injured by any data transfers.

The Android users recently urged the 9th Circuit to revive their claims, arguing that DeMarchi should have allowed them to attempt to prove that Google “secretly hijacked their cellular data.”

Google counters in its new papers that the smartphone users' argument “rest on the mistaken premise ... that when customers contract for cellular data plans, they purchase specific 'bytes of cellular data' from the carrier, in the same manner a customer with a shopping subscription might purchase an article of clothing.”

The company also says there are no claims that the passive data transfers interfered with people's devices.

“No plaintiff alleges that their cellular speeds were throttled as a result of the data transfers,” Google argues. “Nor does any plaintiff allege that they were charged more as a result of the transfers.”

The 9th Circuit has not yet scheduled a hearing date.