Submitted by Dr. Binoy Kampmark
Belief in Google’s promises is much like believing in virgin births. For a company so proud of its pursuit of a transparent information environment, it has remained committedly opaque about informing customers on the way it gathers user data. Statements from the company over the years have not been reassuring, and should foster prolonged scepticism and dread. “Google policy,” former Google executive Eric Schmidt explained with flesh-crawling discomfort in 2010, “is to get right up to the creepy line and not cross it.” Don’t bother typing at all, he claimed. “We now where you are. We know where you’ve been. We can more or less know what you’re thinking about.” Always a charmer.
The Australian Competition and Consumer Commission is yet another regulatory body that has thrown itself into the fray, taking its second case against Google in the Australian Federal Court. Central to this action is the claim that will come as little surprise to watchers of the Silicon Valley scene: the instance of “deception by design”.
In the words of ACCC chairman Rod Sims, Google need merely have said “if you agree to this, we’re going to combine the personally identifiable information we have on your Google account with your browsing activity on non-Google sites, if you agree. If you agree, here’s the benefits and here are the issues, but make it really clear.”
According to the ACCC media release, Google “misled consumers when it failed to properly inform consumers, and did not gain their explicit informed consent, about its move in 2016 to start combining personal information in consumers’ Google accounts with information about those individuals’ activities on non-Google sites that used Google technology, formerly DoubleClick technology, to display ads.”
Prior to June 28, 2016, Google’s privacy policy noted that it would “not combine DoubleClick cookie information with personally identifiable information unless we have your opt-in consent”. On June 28, 2016, that statement was erased and confined to the digital dustbin, replaced with something far more equivocal: “[d]epending on your account settings, your activity on other sites and apps may be associated with your personal information in order to improve Google’s services and the ads delivered by Google.” The “I agree” notification the company posted that day was said to be misleading as consumers “could not have properly understood the changes Google was making nor how their data would be used”. That discrepancy in impaired any prospect of giving informed consent.
Instead of clarifying matters, as Sims puts it, Google indulged in using adtech in a rather sneaky way, thereby connecting the activity of the user with third party sites. “Google significantly increased the scope of information it collected about consumers on a personally identifiable basis. This included potentially very sensitive and private information about their activities on third party websites.” Once done, the information enabled the forensic targeting of advertisements without the expressed informed consent of consumers. “The use of this new combined information allowed Google to increase significantly the value of its advertising products, from which it generated much higher profits.”
Google’s response has been tyrannically snooty. The change in the company’s policies on June 28, 2016 was made clear to users by means of “prominent and easy-to-understand notifications”. (Condescension is second nature in such pronouncements.) Users who did not consent to the update were left with “their experience of our products and services”, according to a Google spokesman, “unchanged”. Typically, Google generates the idea of the mythical, all-knowing user, aware of preferences, informed of choices, and fully appraised of the environment they inhabit. It is a fiction that has lost much ballast over the years. The consumer is as an oblivious as a date consuming a spiked drink.
The ACCC should be congratulated for its persistence, though it remains short on returns. In October 2019, it commenced its first, and to date unresolved action, against the company, chastising it for misleading consumers in making on-screen representations about how they collected and used local data during 2017 and 2018. The central problem in Google’s alleged conduct was how the site continued to collect and use personal data, irrespective of consumers’ wishes. As Sims explained at the time, “We are taking court action against Google because we allege that as a result of these on-screen representations Google has collected, kept and used highly sensitive and valuable personal information about consumers’ location without them making an informed choice.” Cockily, he also called the venture “a world-first case”.
The concise statement filed last year alleges that Google “represented to users of the Android Operating System that it would not obtain data about their location, or that where such data was obtained it would only be used for the user’s own purposes. However, Google did obtain and retain such data and used that data for Google’s purposes.” Misleading or deceptive conduct and false or misleading representations were thereby made on the Location History function.
The confidence of the ACCC seems misplaced, bringing meek conventional weapons to a thermonuclear party. Google has the deepest pockets to draw upon, and is happy to duck and weave through the legal processes of most countries to adapt. Even if fined, its transgressions will continue.
The first federal court case is still dawdling away. Justice Thomas Thawley, wishing to speed things up, vacated two case management hearings scheduled later in the year. By August 3, he has ordered the ACCC and Google to file a statement of agreed facts, and a final document on issues with which the parties are in dispute by August 7. The proceeding will also be referred to mediation commencing on November 2, 2020. The indiscriminate information gathering colossus that is Google will hardly be shaking.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com
