• by Wendy Davis  @wendyndavis, February 28, 2024

Siding against Google, a federal appeals court revived a lawsuit by Android users who claimed the company “hijacked” their cell data by collecting app-related information from their phones when the apps weren't in use.

The decision, issued Wednesday by a three-judge panel of the 9th Circuit Court of Appeals, reversed a ruling issued by U.S. District Court Judge Virginia DeMarchi in the Northern District of California, who dismissed the lawsuit before trial on the grounds that bandwidth isn't the kind of property that can be misappropriated.

The appellate panel effectively held that cell data is "property," and that if the allegations in the complaint were proven true they could support a finding that Google misappropriated that property.

“Although intangible, cellular data serves the particular purpose of enabling access to the cellular network; it can be precisely limited by a user’s data plan; it can be measured when being used; and it can be attributed to a particular user based on that user’s unique identifier code,” Circuit Judges Bridget Bade, Eric Miller and Lawrence VanDyke wrote in an unsigned opinion.

“Cellular data is also capable of exclusive possession or control,” they wrote, noting that it can purchased, and transferred by the phone's user via mobile hotspots.

The judges added that the allegations, if proven true, could show that Google used the cell data “in a manner inconsistent with” users' property interests.

“When Google transmits information from the user’s device to Google’s servers, the cellular data expended in that transmission is allocated to the user and treated by the carrier as data that the customer has consumed,” the opinion states.

The ruling comes in a class-action complaint against Google brought in 2020 by Joseph Taylor and other Android users who alleged Google wrongly collected app-related data. That complaint drew on a 2018 study by Vanderbilt University professor Douglas Schmidt, who reported that idle Android devices transferred data to Google hundreds of times each day.

Google sought a dismissal before trial, arguing that Android users don't have traditional property rights in cell phone data allowances.

DeMarchi agreed with Google, writing that bandwidth isn't comparable to water or electricity.

“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 said in a written opinion. “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.”

Taylor and the others appealed to the 9th Circuit, where they argued in a written brief that Google “secretly hijacked their cellular data, without their consent.”

“Those who secretly hijack services from others should fully expect that they will be forced to pay for those services if and when they are caught,” class counsel wrote.

Google unsuccessfully urged the court to turn away the plaintiffs, writing that they were attempting “to manufacture liability” for common practices.

“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 argued to the 9th Circuit.

The matter is expected to now return to DeMarchi for further proceedings.

Google hasn't yet responded to MediaPost's request for comment.