Judge Gives Google An Early Christmas Present, Declares Privacy Suits Must Prove Harm

A federal judge dismissed a class-action lawsuit against Google, finding no evidence that the search giant’s Internet tracking harmed users. Plaintiffs alleged that Google had “tricked” Apple’s Safari browser into accepting digital “cookies”, which allow companies to track browsing behavior and sell it for targeted advertising.

Avoiding a multi-million-dollar fine is nice, but the court’s reasoning gave Google a present that will keep on giving. Judge Sue Robinson declared that even under the most malicious interpretation of Google’s actions, litigants can’t complain about being victims, because ad targeting doesn’t cause actual harm.

“While plaintiffs have offered some evidence that the online personal information at issue has some modicum of identifiable value to an individual plaintiff,” declared Judge Robinson [PDF], “plaintiffs have not sufficiently alleged that the ability to monetize their PII has been diminished or lost by virtue of Google’s previous collection of it.”

Safari’s browser is configured to block cookie tracking by default. After a Stanford graduate student had discovered Google’s workaround, the FTC launched an investigation that ultimately concluded in a $22 million settlement, but the class action lawsuit went forward because Google didn’t have to admit wrongdoing.

Privacy hawks have struggled to indict Internet companies for an impending civil liberties apocalypse, in part because monitoring and selling data doesn’t really interfere with people’s lives.

“Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad,” writes Washington University Law Professor, Neil Richards [PDF].

As a result, advocates have given up on the so-called “harms-based approach.” The FTC itself says [PDF] that the harms-based approach fails to capture important aspects of privacy, including “the fear of being monitored.”

Under current FTC mantra, unwanted monitoring itself, then, is cause to bring the full wrath of the federal government. The FTC has made aggressive overtures against apps that advertise to children. When I asked a representative what the problem was, she repeated “We know for a fact that kids received advertising,” and noted that “many parents don’t like” it.

Robinson threw the FTC under the bus with her decision, claiming that monitoring and ad targeting don’t violate the law because it doesn’t stop users from doing anything. Of course, future courts could decide to ignore Robinson’s precedent, which would could endanger Google in its next suit: a case against Gmail’s keyword scanner. Users may not like that Google has access to the content of their emails, but it’s unlikely that anyone can prove harm.

To be sure, consumers should worry about overzealous privacy hawks. The much-loved Google Reader was reportedly shuttered because it wasn’t worth the legal costs of privacy suits.

Google had better hope that courts continue to demand that litigants prove real-world harms or their cookie, in turn, will crumble.

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