ACCC to get revealing Google court docs

Greta Stonehouse
(Australian Associated Press)


The Australian competition watchdog has won its Federal Court bid forcing Google to hand over documents revealing its own employees’ confusion over the company’s potentially misleading location data settings.

In a pre-trial hearing on Wednesday, the Australian Competition and Consumer Commission argued that relevant information to its case included the tech giant holding an “oh s***” crisis meeting following a damaging article by Associated Press.

Google’s lawyer Robert Yezerski argued against providing this information, saying it did not fall into the scope of the precise case in which the ACCC has brought against it.

But ACCC counsel Kate Richardson SC said it first needed to see the documents, which have been used in a similar lawsuit by Arizona’s attorney general Mark Brnovich, before they could rule them out.

The ACCC has alleged Google misled Android mobile phone users in thinking that if location history was turned off Google would not obtain personal data about the user’s location.

It says many customers would not be aware that where location history was turned off, but the web and app activity setting was turned on, personal data about the user’s location was obtained by Google for targeted advertising.

In a similar case, Mr Brnovich argued Google’s own expert employees were unable to understand exactly how their company collected location data.

Ms Richardson said some location settings were not obviously defaulted to “on” and were “silently appearing in settings you may never see,” and that a regular Android user would have difficulty in working out how to disable them.

Justice Thomas Thawley granted ACCC’s access to some of the information it applied for, but denied a number of others deemed not relevant to the proceedings.

The documents will not necessarily be tendered as evidence during the hearing.

On Wednesday, Ms Richardson outlined an email exchange between Google’s own software engineers discussing how hard it was for them to disable location settings.

“The current user interface feels like it is designed to make things possible, yet difficult enough that people won’t figure it out,” a Google employee had written.

Another email exchange expressed an employee’s shock that it was not possible to remove location data by clearing location history, and that users had to instead clear their search history.

One employee responded that if “Googlers” were needed to explain such settings, it was “definitely confusing” for a regular user.

In his ruling, Justice Thawley said the matter was of “significant public importance,” and said the admission of this extra material may delay the trial until the following year.

He acknowledged the “Arizona complaint” was significantly broader in scope than the present proceedings.

Case management is due to return on November 6.


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