Google Pays Up for Location-Tracking Practices

consumer data. Now, Google has agreed to pay up for its controversial location tracking practices in the largest multi state privacy settlement in US history. Google will pay nearly three nine two million dollars in a settlement with forty states over allegations that the company secretly tracked users movements and provided the data to advertisers for years, even after consumers

had turned off the location tracking feature. Location history has become particularly sensitive topic following the Supreme Court decision overturning the right to abortion, amid fears that prosecutors could use such data to track women's movements to enforce state abortion bands. Joining me is Eric Goldman, a professor at Santa Clara University Law School and co director of the High Tech

Law Institute. How big a deal is this settlement? I mean, it's basically ten million dollars for each of forty states. The settlement itself is important in showing how the attorney generals are actively looking to redress privacy invasions the grand scheme of things. However, it's probably not as big of

a deal as people might expect. Both the dollar amount is not a huge deal for Google, but also the way in which it's likely the changing the lives is going to be actually quite muted tell us what Google was accused of in this lawsuit. Google was accused of mishandling location information. This is about where people are at a specific period of time, and Google was accused of continuing to record location information even when people asked them

not to, and in general the way it worked. There were various details, but the main aspect is that Google had several different ways of configuring the options, and so even if people turned off location information in one option, there might have been other options that the awesomey to

turn off. And then Google was also alleged to be tracking and even if people were told they would never be tracking location information, so Google was effectively alleged to be lying to consumers about when it was collecting location information. Google says that it's stopped that practice. Is there any question that they've stopped that practice. I have no reason to believe that they continue to practice they were alleged

to be engaged in. But we really don't understand all the different things Google is doing, so they might be doing something else nefarious that we don't don't really know. But the attorney generals have identified eight specific things they wanted to Google to fix. I'm going to assume that Google either fixed it or stopped it. As part of the deal, Google also agreed to significantly improve its location

tracking disclosures and user control starting next year. I have to tell you that I find all these location tracking devices and confusing to try to turn off because if you turn off one thing, oh, then you can't have this. Yes, And to be fair, there are many times that actually we benefit from services tracking our location and information. And I'll just give you one quick example with hiking on my mostrsification and I had trail maps that I had downloaded where I was able to track whether I was

on the trail or not. And that's actually kept me safe. It saved my time, saved war, and tear on my knees. So the fact that the services use location from men can be and that positive. The point of the AGES enforcement is that we should be in charge of when location information about us is used. We should have that choice. It shouldn't be taken away from us. I know that Arizona sued Google and secured million dollars because of the state's consumer fraud Act. So do other states have similar

consumer acts that Google has to be careful with. Yeah, the AGES used generally their standards consumer protection laws to crack down on Google, basically saying that Google applied to consumers um and that's standard issues for the attorney generals to deal with. However, there's a new class of laws have been coming out in the last five years essentially since Google is alleged to be violating these laws that

provide extra protection for location information. And it's really those laws are become the centerpiece of any future action to control location information, and it's those laws that are likely to really dominate how we as consumers interact with services like Google, whether such our location information. In other words, the AGES enforcement dealt with old law and old practices. The new law will come into a fact that will

significantly impact location information across the board. Do most states have those laws? No, let's call them consumer privacy laws. California act at the first, starting into that in eighteen. It has since replaced that law with a new law coming into effect in January called the California Privacy Rights Act. And less than half dozen states have enacted some variation

of the two California laws, but they're growing rapidly. Other states will enact them shortly, and most importantly, because Google is located in California, they're likely to comply with that law across the board, not just in California. So when californ Onias law comes into effect, it's likely to set a national standard, at least through sectors services like Google.

As far as possible criminal prosecutions under abortion bands, there are fears that some state prosecutors could use location data to track women's movements and prosecute them. Google has said it would automatically delete records of users visits to sensitive locations like abortion clinics, But can we trust that they're going to do that and also that their method will be effective? Obviously, the Google will define what it means

by sense of locations. It might be that it won't be comprehensive from our perspective as consumers, But the point is that they're trying to come up with ways of controlling location information that are more pro consumer. Because of the fact that location information is so sensitive, placing a person in a particular spot in time creates all kinds

of potential safety and legal risk. And so that's why I think that the e G settlement is really dealing with a legacy issue because of the fact that we know so much more today than we didn't do that in eighteen about how important is to protect location information. Eric, has there been a lawsuit where something terrible happened to someone because of location tracking? I don't attract the cases that way, but a classic example of ways that things can go wrong is with tracker devices that a x

UH significant other will place onto a victim's car. By doing that, they can then track where that person is, and in some cases that's led to physical attacks on the victim because the criminal knew where to find a person. I was reading all these articles about how to turn things off, and I went to my iPhone. Now I realized I can't turn it off completely because then I can't use the iPhone funds and I can't use Google Maps and all this stuff. That gets the point the

doesn't June. That really hits the name on the head that location information is vye able resource that we want some services to use in certain circumstances because it literally makes our lives better and helps keep us safe and gives us information that we want on the spot. So we don't want to categorically turn off location information. That would be a misstep. But we do want services to listen to us. If we say don't check us now, we need them to honor that. And that really was

the point of the agis enforcement. And you think that at least Google and perhaps Facebook, that they've learned a lesson. I don't know if they've learned a lesson. I think that the new consumer privacy laws that are rolling out will force them to change their behavior, even if they would prefer not to. So I don't think this particular settlement is going to teach them that lesson. I think the other laws will cause them to take it seriously.

The bottom line is that I think services like dog on Facebook now realize just how sensitive location information is, and they're being forced to do better. Zarek always a pleasure, that's Eric Goldman, a professor at Santa Clara University Law School and co director of the High Tech Law Institute. President Joe Biden's planned to cancel billions of dollars in student loans is in jeopardy because of legal challenges that could mean no one receives a dollar of debt relief.

The White House insists it will ultimately prevail, even though two federal courts blocked the program from taking effect. The setbacks have rattled supporters, who fear that more than forty million Americans who expected relief will instead start getting billed for their student debt in January, when a pandemic Ara moratorium on payments is slated to expire. Joining me is

elliott Stein Bloomberg Intelligence Senior litigation analyst. So has the problem in these lawsuits been having a plaintiff that has standing to sue? Yeah, that was definitely a hurdle u in some of the early lawsuits, and a couple of them, a couple of the lawsuits were dismissed because of standing. Right, you know, it's a basic tenet of litigation in the US that in order to sue, you have to have some sort of concrete and direct injury, otherwise our courts

will just be flooded with you know, fabulous litigation. So we had several lawsuits filed challenging the student loan plan. Like I said, the first couple were tossed because the plaintiffs couldn't show that they were you know, injured by

the plan in a concrete or direct way. But more recently we've had a couple lawsuits, including one where according Texas essentially throughout the plan inside it was unconstitutional, and it found that the plaintiffs in that case were properly injured sufficiently to bring a lawsuit that case, the Texas case, is that the only case where the judge got to the merits of the Biden administration's loan forgiveness plan. It is is it is, and it's interesting because it's interesting

how he got to the merits. The borrowers in that case said that they were injured because they couldn't provide notice and comment on the plan, and the government responded and said, well, you know the Heroes Act that we think authorizes the plan doesn't say that we have to give a notice in comment period um for this kind of plan. And the judge said, well, you know, I'm going to jump to the merits, and on the merits, I don't think the plan is authorized under this statute.

And as a result, you know, the language and the statute saying that you don't need death notice and comment doesn't even apply. And so that's how we got the standing. It was sort of mixing both the standing issue and the merits issue, and that's how he got to it. I mean, he did it back, which you're supposed to find do the plaintiffs have standing first, that's before you even get to the merits. Yeah, it was a little bit unusual, you know, a little bit maybe creative or clever.

I'm not sure he's actually going to get reversed on that. Um. You know, it's going to go to the Fifth Circuit from there. But I agree he's sort of he sort of conflated the two, you know, the standing issue and the merritie issue. But at the end of the day, you know, from there it's going to go to the fifth Circuit. And I don't see this judge getting reversed there. The Tift Circuit is one of the most conservatives in the country, and I don't think it's I don't think

he's gonna get reverse at the Supreme Court either. In that case, it was two borrowers who were partially or fully ineligible for the loan forgiveness. So they're saying we have standing because we're not getting what other people got. Exactly one one of the borrower's loans were commercially held in the plan. You know, the Bitdom administration had tweeked its plans so that it would only apply to loans held by the Department of Education and not privately held

loans um. And so that person said, well, I can't participate in the plan because my loans are commercially held. And then the other borrower in that case was eligible for the ten thousand dollar forgiveness but not eligible for the higher amount of forgiveness UM that PELL grant recipients are eligible for. And so they said, you know, we

can't participate in this plan. And you know, have there been a notice in common period, we could have at least given our thoughts, but we were protruded from doing that as well. So that that's the injuries that they pointed to. It sounds a little tenuous to me. Yeah, I mean, you know, I was surprised by two. I didn't think those kinds of injuries would be you know,

concrete and direct enough you know, to get standing. But the studs, you know, like we talked about, he sort of got around that by jumping to the merits finding, you know, that that the plan was not authorized under the statute that the administration pointed to, and so then he sort of backed into standing in that way. But I'm not confident he's gonna get reversed. Why do you think the Supreme Court wouldn't reverse him? You know, I think they're certainly on the merits they're going to agree

with him. And you know, I'm not sure that what he did is entirely um not allowed, uh you know, and in some sense, I um, you know, I think they'll probably find a way to agree with that judge in order to buy the plans from from being implemented. Supreme Court Justice Amy Coney Barrett has refused twice though, to block Biden's student loan relief plan without comment. So it could just be because she's waiting for appeals to play out. Yeah, I think that's exactly right. The two

cases were really like even bigger stretchers in terms of standing. Right. In one of those cases, it was a borrower in Indiana who said his state income taxes would go up if she was automatically enrolled in the plan. But the administration has already changed the plan to say that borrowers would not be automatically enrolled and they could opt out

if they wanted to. And then the other case was just a general taxpayer grievance saying that, you know, public funds should not be used for this, and and that kind of standing has almost always been precluded by the Supreme Court. Those cases were much weaker in terms of standing. Well, let's talk about the lawsuit that went up to the Eighth Circuit. Six Republicans states brought the lawsuit. What was

their argument. There were arguing a few things, but sort of broadly speaking, you know, the overarching theory of their case was that services that were instrumentalities of those states would be injured because if the loan balances were reduced, they were earned less income in terms of servicing those loans.

What's interesting is um a lot of those services primarily service commercially held loans privately held loans, and so in response that I lawsuit, originally the administration tweaked its plan and narrowed it so that it would only apply to

federally held loans and not privately held loans. But one of their services in that case, in the state of Missouri, also service federally held loans, and so the trial court judge in that case said, well, actually, you know, Missouri can't Missouri and the state services are actually separate entities. Missouri shouldn't be able to sue on behalf of the servicers. The servicer thinks it's injured, it should see on its own.

So the trial court dismissed that lawsuit. But the Eighth Circuit said, well, actually, you know, the servicer could be an arm of the state. It looks like it likely is an army of the state. So we're gonna put there the administration's plan on hold while this appeal praised out,

So they didn't reach the marriage. They didn't fully decide standing yet even but you know, it looks like they're leaning towards finding standard, and then once once they find standard, I'm I'm quite sure they'll also um reject the plan on the merits. The Eighth Circuit is dominated by judges named by Republican presidents, and on the panel were three judges appointed by Republican presidents. Yeah, Eighth Circuit an acests, you know, dominated by judges is appointed by Republican presidents.

But you know, I always say, you know, judges appointed by Republicans are less likely to defer to agency action. But you know that's that's a generalization. It doesn't always hold. The trial court judge in that case was a George W. Bush appoint due, and he dismissed the lawsuit. And you know it's turned out different on appeal. Is the Biden administration appealing this Eighth Circuit decision to the Supreme Court.

So the Eighth Circuit decision, you know, that appeal is still playing out, right, All all the Eight Circuit said was that they're putting the plan on hold while the appeal plays out. Now, the administration could um asked the Supreme Court, uh, you know, to undo the stay of the plan. I think that's highly unlikely to succeeded, because you know, it makes sense to sort of keep the

status quo while litigation plays out. But they have already appealed their Texas judges decisions to the Drift Circuit so that that one will proceed. And in the meantime, what's happening to the people who are applying or were applying for student loans forgiveness? So applications that were already made before these decisions are you know, just held in limbo.

And since these decisions have come out in the last couple of weeks, the administration has basically suspended the application process, so you can't even apply for forgiveness at this point.

This help services for privately owned loans. Yeah, so you know, in in that UM in the Eighth Circuit case, in the in the trial Corps when when those when that when that lawsuit was first filed, the admitted the administration's plan originally would have allowed forgiveness for both loans held by the Department of Education, but also federal loans that

were held by private uh entities, commercial entities. UM. What fear was that a lot of the services like you know, maybe like Navy and UM or Discover uh, you know, companies that that service commercially held loans would sue. They never did, but but that's but some of the services that were state instrumentalities are there are six GOP states

at SUD did service commercially held loans. So what the administration did to try to essentially undercut those lawsuits was that they narrowed the plan and they said only federally held loan loans will be eligible for forgiveness and not commercially held loans. And so that basically took away the possibility of lawsuits by servicers um that service commercially held loans, Like I said that the Missouri servicer also services federally held loans, and so they they're still in the case.

But companies like you know, like Navy and Salary may discover the they're essentially already helped by the administration narrowing the plan only to federally held loans, which they don't even service. So in your opinion, the merits of the case are weak for the administration because it based it on the Heroes Act. Yeah, I mean, the way I

would say it is that you know it um. You know, judges who have subscribed to the philosophy of the major questions dock in um and who want to sort of cretail the administrative state certainly are gonna find the Administration's justification for us in the Heroes Act is weak um. And we've already seen that, you know, with the judge in Texas with the Eighth Circuit to some extent um.

And you know, we we've seen it previously with the administration trying to use covid um to get certain things done, like the eviction moratorium. You know, they tried to uh you the court said that CDC couldn't use um, that they didn't have statutory authority to enact in eviction moratory. And same with start trying to get an employee vaccine mandate.

So you know, we're sort of in this state where um, you know, Conservatives certainly dominates the Suppreme Court and the Fifth Circuit and the Eighth Circuit and some other circuit courts, and that they subscribe to the Major Questions doctrine. And unless you have a statute that really specifically authorizes um, you know, action that has you know, national and economic importance, you know they're they're going to reject agency action unless

you can really point the specific statutory authority. Thanks so much, Elliott. That's Bloomberg Intelligence, Senior Litigation analyst, Elliot Stein. For more of elliotts analysis, you can go to b I go on the Bloomberg Terminal. And that's it for this edition

of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcast as you can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com slash podcast slash Law, And remember to tune into The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grossow, and you're listening to Bloomberg