Google can’t get out of lawsuit accusing it of snooping on customers

SAN JOSE, Calif. (CN) — Google cannot compel arbitration of claims that the company inappropriately spies on its users, including children, via its Google Assistant technology.

U.S. District Judge Beth Labson Freeman ruled Tuesday, four years into the lawsuit, that Google cannot force the anonymous class members to arbitrate their cases in separate legal hearings that favor the company.

The class members in a consumer lawsuit claim Google Assistant — which when activated with “hot words,” like “Hey Google,” records audio and sends it to Google — sometimes sends audio to Google without proper activation, violating their rights under federal and state privacy law and California’s constitution and common law.

The plaintiffs must prove that this amounted to a violation of the Wiretap Act to prevail. One of the most important elements is proving that Google disclosed the information it collected to a third party.

Even after a third party is established, the plaintiffs have yet another hurdle to overcome: proving their private conversations were recorded intentionally.

Freeman said in an 11-page order Tuesday morning that after years of litigation that has included fact-finding, expert discovery and certifying a class, the plaintiffs have established a waiver of arbitration.

Google “reserved the right to compel arbitration of their claims upon confirming plaintiffs’ agreement to one or more applicable binding arbitration agreements,” Freeman said, but then the company spent nine months litigating the case without an indication that it would seek to compel arbitration. 

The company filed a motion for summary judgment in August 2022, and filed opposition to class certification in September 2022. It did not provide evidence that any putative class members were subject to binding arbitration, but identified several agreements it said could apply to them, Freeman said. And at the Dec. 14, 2023, hearing on the motion to compel arbitration, the judge said that while Google had not waived its right to compel, she would revisit the issue in light of the Ninth Circuit’s guidance on waiver in two recent cases: Hill v. Xerox Bus. Servs., LLC. and Armstrong v. Michaels Stores, Inc.

The Ninth Circuit’s decisions in Armstrong and Hill illustrate conduct that does not rise to the level of waiver, or which crosses the waiver threshold, the judge said. Google’s conduct did not resemble that of the defendant in Armstrong, who asserted the right to compel arbitration at the earliest possible moment, filed no motions on the merits and conducted only limited discovery.

Google’s conduct is closer to the behavior of the defendant in Hill, Freeman reasoned, because it failed to assert its right to compel arbitration under the Google Device AA or the sales terms until years of litigation had passed.

“Google ignores that its answer was filed two and a half years into the litigation, after four motions to dismiss that resulted in dismissal of three claims on the merits,” she wrote. “Google also ignores that after raising arbitration in its answer, Google continued litigating the case for nine months without further mention of arbitration, and even went so far as to file a motion for summary judgment.”

Freeman also disagreed with Google’s characterization of its own motions to dismiss and motion for summary judgment.

“Considering the totality of the circumstances, the court finds that Google acted inconsistently with its right to compel arbitration under the Google Device AA and/or the sales terms,” the judge said. 

Attorneys for both sides did not immediately respond to requests for comment.

The judge advanced claims against Google in July 2021, ruling that Google Assistant users have a reasonable expectation of privacy that may be violated when conversations when they are near to the Google Assistant are recorded and used for the purpose of targeted advertising. 

Freeman has expressed skepticism about this part of the case in previous hearings, saying YouTube, which is mentioned in the website's terms of service, isn't a third party separate from Google.

She previously rejected Google’s arguments that any wiretapping is accidental, but has made it clear that the plaintiffs will have to prove that Google was aware its product was unintentionally recording users and decided not to fix it in order to benefit financially.

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