• by Wendy Davis  @wendyndavis, August 4, 2023

Google is urging a federal judge to reject web users' request for an injunction that would prohibit the company from collecting analytics data at sites operated by health care providers.

In paper filed Thursday with U.S. District Court Judge Vince Chhabria in the Northern District of California, Google argues that tools like Google Analytics “only provide developers with information about how users use the developers’ own properties.”

Google also say health care sites don't send it personally identifying information, or “health details about any person in particular,” and that it doesn't allow the use of sensitive health data for ad targeting.

The papers come in response to privacy lawsuits filed against the company in May, when users claimed that Google was collecting patients' sensitive health data from online sites. The first complaint was brought by an anonymous “Jane Doe” who alleged that she used Planned Parenthood's site to search for an abortion provider, and received treatment at the reproductive health care center's affiliate in Burbank, California.

The complaint in that case referred to an investigation by the app Lockdown Privacy, which reported last June that Planned Parenthood's site used third-party analytics tools leaked “extremely sensitive data" to third parties including Google, Meta and TikTok.

Soon after that case was filed, other anonymous plaintiffs later alleged in a separate lawsuit that Google collected health information from a variety of health care sites.

The matters were consolidated earlier this year and are pending in front of Chhabria.

Last month, the plaintiffs sought an injunction that would ban Google from collecting data from several specific health sites, and to refrain from using that data for advertising.

Among other material submitted to the court, the plaintiffs offered a declaration by Timothy Libert, a former Google employee who currently owns the consulting firm webXray.ai. He alleged that he used publicly available information to analyze several health sites -- including those operated by Kaiser Permanente, Gundersen and MD Mercy -- and found that Google's code was “consistently present on pages that contain private and sensitive information.”

“The analysis of Kaiser Permanente, Gundersen and MD Mercy site maps reveals that Google is present on nearly all web pages,” he alleged. “The net effect is that Google does not get just a snapshot of an individuals’ interaction and communications, but rather an almost unrestricted view and access to the full navigation and browsing history undertaken by individuals with their health care providers.”

Google counters in its new court papers that the plaintiffs haven't shown they're entitled to an injunction for several reasons.

Among other arguments, Google says it's likely to prevail in the litigation because it's simply a vendor of legal analytics tools.

“This district has repeatedly recognized that website and app developers have the right to employ analytics tools, and that the providers of those analytics tools, like Google, serve as mere vendors that provide companies with information about how users use their own websites and apps,” the company writes.

Google also argues that Libert's declaration only shows that some sites use Google tools to collect information about usage.

“He does not show that Google received [personal health information], or that the data was used for anything other than the websites' own analytics," the company writes.

Google also filed a separate motion asking Chhabria to disqualify Libert on the grounds that he owes the company “a continuing duty of confidentiality” under the terms of his employment contract.

Libert, who was a privacy engineer at Google from May of 2021 until this March, “worked hand-in-hand with Google in-house counsel to develop systems and policies relating to cookie privacy and compliance and received privileged and confidential information relevant to plaintiffs’ claims,” the company says.

Google adds that Libert's “knowledge of confidential information relevant to this case creates a constant risk that such information could be disclosed to plaintiffs, inadvertently or not.”

Chhabria is expected to hold a hearing in the case on September 21.