Earlier this week, Google and its parent company Alphabet moved to end the case captioned In Re Google Assistant Privacy Litigation, citing the plaintiffs’ inability to prove their claims after extensive discovery. The consolidated litigation proceeding in San Jose, Calif. centers on allegations that voice-activated “Google Assistant” records users’ conversations when they do not activate the service with a “hot word,” in other words, without their consent.
The motion explains that Google Assistant was launched in May 2016, and enables users to ask for help with a variety of tasks including setting reminders, answering questions, playing music, and getting directions. In this week’s motion, Google added that it now offers tools allowing users to control what information Google collects and how that information is used, such as a sliding hot word sensitivity control and guest mode.
As previously reported, the plaintiffs accused the virtual assistant of recording conversations spoken after anything that sounds remotely like a hot word. Even after Google discovers that it has wrongly recorded a conversation, it nonetheless keeps and analyzes the recording, the plaintiffs claimed, noting that the company also does not distinguish between adult and child voices, the latter of whom would not have consented to Google’s terms of service.
In July 2021, Judge Beth Labson Freeman dismissed just under half of the plaintiffs’ claims. The case has since proceeded through discovery, with Google noting that it has produced over 3 million pages of documents and that the plaintiffs have taken 14 depositions. All of this Google says, has only yielded “undisputed evidence shows that Plaintiffs cannot maintain any of their claims.”
The motion makes a number of arguments, including attacking the plaintiffs’ purported reasonable expectation of privacy. It says that given that they used Google Assistant devices when they knew or should have known that misactivations could occur, yet as the evidence has shown, did not take reasonable steps to reduce misactivations, they did not have a reasonable expectation of privacy.
The motion also asks the court to take a hard look at the seriousness of the intrusions experienced by the plaintiffs, arguing that they were not egregious enough to rise to an actionable level under invasion of privacy law. Google points to a lack of evidence showing the plaintiffs have or will suffer harm as a result of the intrusions, the low frequency of hotword misactivations, consistent with its own estimates, and its “extensive and ongoing” efforts to decrease all misactivations.
Google also asks the court to dispose of the plaintiffs’ Stored Communication Act claim for failure to establish that Google Assistant is an “electronic communications service.” Lastly, the company requests summary judgment on the plaintiffs’ breach of contract and Unfair Competition Law claims because they offer neither evidence of damage nor lost money or property as a result of the alleged misconduct.
The plaintiffs are represented by Lexington Law Group, Lowey Dannenberg P.C., and Scott+Scott Attorneys at Law LLP. Google is represented by Perkins Coie LLP.
