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No searching here: Google wants documents Arizona AG obtained kept secret
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No searching here: Google wants documents Arizona AG obtained kept secret

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Attorney General Mark Brnovich is suing Google, claiming the internet giant is defrauding Arizona consumers by collecting private information.

PHOENIX — Internet giant Google is asking a judge to block a bid by Attorney General Mark Brnovich to publicly disclose documents he got from the company during his investigation of how it uses private information.

Attorney Jean-Jacques Cabou contends there’s no basis for Brnovich’s complaint, arguing that anything the company is accused of doing does not run afoul of the Arizona Consumer Fraud Act. That is the law the attorney general is using to claim Google is defrauding Arizona consumers by collecting private information and then storing and sharing it with others.

But Cabou says there can be no fraud because Google was not selling anything to Arizona consumers. And he said Arizonans knew that Google applications and phones using Google’s Android operating system were tracking them, then they agreed to it.

Cabou told Maricopa County Superior Court Judge Timothy Thomason in new filings that he should decide the issue of the validity of the case first. He said if the lawsuit is tossed, the issue of what Google documents become public becomes legally moot.

But Assistant Attorney General Beau Roysden told the judge that the public has a right to know immediately what his office unearthed in its investigation of Google. And he said the company’s mere assertions that all 1,200 pages of what it has produced should not be released “do not establish that the materials are confidential, nor are they a basis for sealing information so designated.”

And he said Google has never explained how it would be harmed by disclosure.

“Nor has Google shown that its interest — whatever it may be — overrides the presumption of public access,” Roysden wrote. “On the contrary, consumers have a strong interest in learning how their own data is surreptitiously collected and used by Google.”

Central to the lawsuit, Brnovich is arguing, is that Google last year collected $135 billion from advertisers for detailed information about its users, including where they are located.

That information helps those advertisers target users in specific geographic locations.

The problem with all that, Brnovich charges, is that the tactics the company uses to “surveil” is users’ locations are “willfully deceptive and unfair.” And that, he said, violates the state’s Consumer Fraud Act.

He also says it is difficult for users to stop Google from tracking their travels even after they turn off the “location services” on their devices, calling it “a fake button.”

If nothing else, Brnovich said the default setting for this should be “off.”

Brnovich wants a judge to order Google to surrender any profits it has made “by means of any unlawful practice.” He also wants “full restitution” to Arizona customers and for the company to pay a fine of up to $10,000 for each willful violation of Arizona law.

Finally, he wants a court order barring Google from engaging in similar practices in the future. That would cover not just Google manufactured devices but also its Android operating system and its popular search engine.

Cabou has a few charges of his own.

“Google learned through information it received pursuant to the Arizona Public Records Law that the investigation was encourage by Google’s long-time adversary, Oracle,” he told the judge.

Cabou said Brnovich is arguing the documents at issue need to be disclosed because of “so-called public interest in the case.” But he said that the investigation itself was “improperly publicized” locally and nationally before the lawsuit was filed.

Capitol Media Services, using documents obtained through public records, wrote in 2019 that Brnovich had launched an inquiry into “a major tech firm” about whether it was tracking their movements.

The name of the firm to be investigated, located in a contract with an outside law firm for assistance, was blacked out. But the contract with an outside legal firm was signed just a week after The Associated Press reported that Google was tracking users’ locations even after people had opted out.

Cabou even has something to say about that contract, pointing out the fee arrangement with the Washington law firm of Cooper & Kirk, gives that firm a percentage of what it could recover “or extract a settlement from Google, and nothing at all if they did not.”

The contract caps total outside legal fees at $50 million, not counting what might be recovered in restitution for Google clients.

Ryan Anderson, spokesman for the attorney general’s office, called Google’s response to the request for records — and the complaint about the contingency fee arrangement — “hyperbolic and absurd.”

He said to reach that amount, a settlement or verdict would have to exceed $1 billion.

A status conference on the case is set for this coming month.

On Twitter: @azcapmedia

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Firm — apparently Google — will be investigated by Arizona's attorney general about the way in which it keeps consumer location data through smartphone operating systems “even when consumers turn off ‘location services’ and take other steps to stop such tracking,” the contract says.

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