Judge: Google class action 'usual suspects' cash-fling 'smells'

[Jeffrey Walton <noloader () gmail com>]

You can't make this stuff up...

http://www.theregister.co.uk/2014/09/05/judge_unhappy_with_proposed_google_privacy_payout_in_class_action/

A proposed settlement to the "referrer header" class action suit
against Google has been rejected by a Californian judge. The that
would have seen the search giant funnel millions to cherry-picked law
schools and Google-friendly pro privacy groups.

The lawyers for Google and the lawyers for the plaintiffs agreed to
settle the class action privacy suit* after four days of "mediation"
and "arm’s-length negotiations" and apparently decided that the firm
should pay out $8.5m to lawyers and various Google-friendly groups.

Yet the proposal leaves the individuals behind the class action
without a penny, while rewarding digital activist groups, academics
and lawyers. Under the proposed settlement's terms, the plaintiffs’
lawyers alone would pocket $2m.

In 2010 a group of consumers alleged that Google “leaked” personal
information about search users to third party marketeers. Their class
action lawsuit alleges that Google violated its own privacy policy by
including search terms in the referrer header. That information is
transmitted to sites listed in Google search results whenever a user
clicks a link.

Certain types of searches, therefore – such as the user's own name –
can be argued to comprise personal data, according to the plaintiffs.
The alleged breach comes about when that “personal data” is
transmitted to the website receiving the user's click from the search
results.

The consumers proposed that Google-friendly cyberlaw departments
who’ve benefited previously, like Harvard’s New Age crank-tank the
Berkman Center, should receive the benefit of their proposed
settlement.

It also added non-tech groups to the list – the American Association
of Retired Persons – perhaps in the hope this “diversity” would
impress the judge.

US District Judge Edward Davlia didn’t exactly sound thrilled,
Bloomberg reports:

“The elephant in the room is that many of them are law schools that
you attended,” Davila said, adding, "I’m disappointed that the usual
suspects are still usual."

The lack of transparency in the selection process “raises a red flag”
and “doesn’t pass the smell test,” he added.

The case is another “cy pres” settlement in a series of privacy cases
against Facebook and Google. It’s fascinating for revealing cosy
relationships between what should be the poacher and the gamekeeper.

Cy pres allows the judge to award payouts to intermediaries, leaving
nothing to individuals, and it’s skewed the incentives for all those
involved in the litigation in a way critics find disturbing. Far from
watching your back, digital rights groups and activist academics have
an incentive to make a tame settlement quickly, pocketing a
substantial amount of cash, but leaving nothing for the ordinary Jane
or Joe whose privacy was violated by the tech giant.

Marc Rotenberg’s EPIC has objected to the settlement:

The proposed settlement is bad for consumers and does nothing to
change Google’s business practices, EPIC argues in a court filing:

The company will simply revise its notice so that it may continue to
engage in the privacy-invading practice that class counsel claimed at
one time provided the basis for class action certification and
monetary relief. The settlement confers no monetary relief to class
members, compels no substantive change in Google’s business practices,
and misallocates the cy pres distribution to organizations that, save
one, are not aligned with the interests of class members and do not
further the purpose of the litigation.

EPIC also noted the obvious about the proposed recipients of Google's cash:

With one exception, they are not consumer privacy organizations and
they do not seek to limit the privacy impact of advertising practices
that adversely impact Internet users.

Consumer Watch also opposes the deal.

Aligning “citizens' groups” and "tech rights" with Google and
Facebook's commercial interests has not been entirely unsuccessful.
When the Court of Justice of the European Union ruled on ordinary
people’s right to influence their reputation, privacy groups were
conspicuously silent. And departments such as the Google-supported
Oxford Internet Institute went into bat for the giant ad-broker. One
even found himself appointed to be one of Google’s 'Right To Be
Forgotten' advisors.

Three years ago, Google made a deal to settle a class action brought
against its Buzz service by dispersing $8.5m to a dozen groups,
including $1m to the Electronic Frontier Foundation. In that
settlement, the lawyers were awarded $2m. And Google managed to find
$500,000 for an obscure ethics department at Santa Cruz University –
where the presiding judge in the case taught. The judge justified the
money-go-round by arguing that that individual citizens would gain
“indirect benefits” from the deal.

The arrangement came to light when a privacy group that had been
omitted from the deal, EPIC, objected.

The following year, Facebook made a similar deal, rewarding
organisations rather than individuals in another cy pres arrangement,
this time over the use of individuals’ mugshots for Sponsored Stories.
In that case, US Supreme Court Justice John Roberts expressed his
concerns over "disconcerting features" of the settlement, and the
growing use of cy pres in class action cases in general, cautioning
that “in a suitable case, this court may need to clarify the limits on
the use of such remedies".

By 2013, groups were being formed simply to be recipients of Silicon
Valley’s privacy slush fund – as Chris Castle describes here.

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