• by Wendy Davis , 8 hours ago

Google has agreed to pay $135 million to settle allegations that it misappropriated Android users' cellular data allowances by collecting app-related information from their phones when the apps were not in use.

If accepted by U.S. District Court Judge Virginia DeMarchi in San Jose, the settlement will resolve a dispute dating to 2020, when Joseph Taylor and other Android users alleged that Google wrongly appropriated cellular data they purchased.

The proposed settlement, unveiled late Tuesday, also requires Google to tell users that the cell data transfers occur “in the background, when you are not directly interacting with your device," and to inform users that some cell data transfers “cannot be turned off.”

Google spokesperson José Castaneda said, "We are pleased to resolve this case, which mischaracterized standard industry practices that keep Android safe," adding that the company is making additional disclosures to "give people more information about how our services work.”

The plaintiffs' 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.

Those alleged data transfers "interfere with plaintiffs’ property interests, depriving them of data for which they, not Google, paid," the complaint alleged.

DeMarchi originally dismissed the lawsuit, ruling that cellular data isn't the kind of property that can be misappropriated.

“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 in a ruling that threw out the case before trial. “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.”

The plaintiffs then successfully appealed that decision to the 9th Circuit Court of Appeals, arguing 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 countered that 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 appellate judges sided against Google, effectively ruling that cellular data is 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.

DeMarchi is expected to decide next month whether to grant the deal preliminary approval.