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Google location tracking deal could be derailed by politics

Google’s plan to pay $62 million to settle allegations that it tracked people even when their Location History setting was switched off may have to be renegotiated based on several objections.

These include an objection to the proposal on the grounds that there was a lack of payment to those affected, allegations of ties between Google and the nonprofit beneficiaries, and issues raised about the politics of those organizations.

The proposed settlement [PDF], filed late last year, represents an attempt to resolve a complaint [PDF] filed back in August 2018 about Google tracking people’s locations through mobile applications, one of many such cases that collectively resulted in about $500 million in relief. It covers hundreds of millions of Google users from 2014 through 2023 when the settlement was preliminarily approved.

These users of Google services qualify as Class members because Google allegedly tracked their locations when using Android and iOS devices even when they’d disabled Location History in their account settings.

But due to the purported impracticality of identifying and paying pennies to millions of people whose privacy was violated, the settlement proposed awarding the funds cy pres – Latin for “as near as possible” – to 21 nonprofit organizations, after $18 million is allocated to pay attorneys’ fees and the small number of named plaintiffs receive $5,000 each.

For example, the settlement proposal calls for the ACLU Speech, Privacy, and Technology Project and the Electronic Frontier Foundation to receive $6 million each, and for Georgetown Law, Harvard, MIT, and Yale to each receive $1.5 million, among other beneficiaries.

The idea is that paying these organizations represents the best practical remedy to Google’s behavior, because the groups support privacy through their education and policy work.

Last month, however, and in a subsequent filing last week, attorney Theodore Frank, of the nonprofit Hamilton Lincoln Law Institute, urged the court to reject the settlement proposal, noting that it’s quite feasible to pay millions of plaintiffs.

Frank has helped make that happen: He previously urged the rejection of a cy pres settlement in another Google privacy claim (In Google Referrer Header Privacy Litigation), and helped to get $23 million directed to class members. Given a 1.3 percent claim rate, that resulted in $7.70 being paid each to more than 2 million claims who would otherwise have gotten nothing.

With regard to the Location History case, Frank argued in a filing [PDF] last week that the organizations receiving the money “engage in work that a substantial percentage of the class would not want to support (such as ‘racial justice’ – a codeword for support for racial discrimination and anti-Semitic policies – and promoting abortion).”

Essentially, he’s arguing that those in the settlement Class with conservative views are not being represented adequately if the funds go to organizations that support progressive causes.

He also objects that some of these organizations focus only on a narrow subset of people affected by Google’s tracking, “(e.g., computer science undergraduates or ‘historically marginalized communities’).”

What’s more, Frank contends that many of the organizations that would benefit from Google’s funds have prior relationships that raises questions about conflict of interest.

“Multiple attorneys from the law firms litigating the case sit on the boards of the proposed recipients,” he asserts in a March filing [PDF]. He also points out that the lead law firm handling the case, Lieff Cabraser Heimann & Bernstein, LLP, has worked with the two proposed settlement recipients, the Electronic Frontier Foundation and the American Civil Liberties Union.

What’s more, he contends, because Google already gives to several of the designated cy pres organizations, the value of the settlement is less than it appears: “this is merely a shift in accounting entries, with no evidence that the cy pres is not displacing donations Google would already make.”

“The fundamental problem is that the money belongs to the class, which has not consented to have $40-$50 million of its money given away to friends of the plaintiffs’ lawyers and often ideological organizations,” Frank told The Register in an email.

“If a lawyer is representing an odious billionaire (call him Monty Burns) and decides to divert a few million dollars of his client’s money to a nonprofit because the lawyer feels the nonprofit will spend it better than the billionaire would, the lawyer would go to jail for embezzlement and be disbarred. There shouldn’t be an exception just because the clients here aren’t billionaires.”

The plaintiffs pursuing the settlement have been allowed to file a response but have not yet done so.

A hearing on the objection to the proposed settlement is scheduled for Thursday, April 18, 2024. ®