Apple Magazine - - Summary -

The Supreme Court strug­gled this week over what to do about an $8.5 mil­lion class-ac­tion set­tle­ment in­volv­ing Google and pri­vacy con­cerns in which all the money went to lawyers and non­profit groups but noth­ing was paid to 129 mil­lion peo­ple who used Google to per­form in­ter­net searches.

The jus­tices con­sid­ered ob­jec­tions to the set­tle­ment in a case in­volv­ing Google searches peo­ple do about them­selves. The law­suit ar­gues that Google sends web­site op­er­a­tors po­ten­tially iden­ti­fy­ing in­for­ma­tion when some­one clicks on a link pro­duced by a search. The suit says the prac­tice vi­o­lates users’ pri­vacy un­der fed­eral law.

The is­sue at the court con­cerns the rare in­stances in which courts ap­prove a “cy pres” set­tle­ment, roughly trans­lated as near as pos­si­ble, and find it’s im­prac­ti­cal to send money to the very large class of af­fected peo­ple.

Google agreed to set­tle the class ac­tion for users of its search func­tion be­tween 2006 and 2014. Of the $8.5 mil­lion, $2.1 mil­lion even­tu­ally went to lawyers, $1 mil­lion paid ad­min­is­tra­tive costs and $5.3 mil­lion was set aside for six or­ga­ni­za­tions that deal with in­ter­net pri­vacy is­sues. Four of the groups are af­fil­i­ated with uni­ver­si­ties, while the other two are the World Pri­vacy Fo­rum and AARP.

The three in­di­vid­u­als who ini­tially sued re­ceived $5,000 each, but the mil­lions of Google users they rep­re­sented re­ceived noth­ing. If all 129 mil­lion peo­ple had been paid, they would have got­ten 4 cents each.

Set­tle­ments in which class mem­bers get no money at all are rare, class ac­tion ex­pert and Har­vard law pro­fes­sor Wil­liam Ruben­stein wrote in a court fil­ing. Rub­sen­stein counted 18 such set­tle­ments stretch­ing back to 1995.

Theodore Frank, rep­re­sent­ing him­self and other ob­ject­ing Google users, said that if the court were to up­hold the set­tle­ment, it would cre­ate “per­verse in­cen­tives for class coun­sel to di­vert money away from their clients and to third par­ties.”

The jus­tices seemed to ap­proach the case from sev­eral dif­fer­ent an­gles, mak­ing it hard to see how it would be re­solved.

Chief Jus­tice John Roberts, among the jus­tices who ap­peared most crit­i­cal of the set­tle­ment, tended to sar­casm in ask­ing whether AARP was an ap­pro­pri­ate re­cip­i­ent of some of the money. “As if this is only a prob­lem for el­derly peo­ple?” Roberts asked.

The chief jus­tice also raised ques­tions about Google’s in­volve­ment in the process of pick­ing

the re­cip­i­ents of the money, in­clud­ing a group it had pre­vi­ously con­trib­uted to. “Well, don’t you think it’s just a lit­tle bit fishy?” Roberts asked lawyer Jef­frey Lamken, who sup­ported the set­tle­ment on be­half of the in­di­vid­ual plain­tiffs and the class.

Less than a month re­moved from his tu­mul­tuous con­fir­ma­tion with its al­le­ga­tions of sex­ual mis­con­duct, Jus­tice Brett Ka­vanaugh said he un­der­stood why peo­ple would ob­ject to the in­for­ma­tion about their searches be­ing pro­vided to web­sites. “I don’t think any­one would want the dis­clo­sure of ev­ery­thing they searched for dis­closed to other peo­ple. That seems a harm,” Ka­vanaugh said.

The jus­tices’ un­der­stand­ing of the tech­nol­ogy at is­sue in their cases can be im­per­fect. On Wed­nes­day, An­drew Pin­cus, the lawyer rep­re­sent­ing Google, had to ex­plain sev­eral times that the ini­tial law­suit was over re­fer­rer head­ers, in­for­ma­tion that is sent to a web­site when some­one clicks on a link sug­gested by a Google search.

Jus­tice Sa­muel Al­ito com­plained that fol­low­ing a search for men’s shoes, he is bom­barded by ads for shoes. Dif­fer­ent is­sue, Pin­cus said.

Jus­tice So­nia So­tomayor wasn’t per­suaded. “And given that I went into a store not long ago, and with­out giv­ing them any­thing ex­cept my credit card, they came back with my web­site, I -- it seems,” So­tomayor said, not ex­plain­ing what she meant by her web­site.

Pin­cus replied: “Well, there are lots of ways that in­for­ma­tion is dis­closed that don’t have to do with the re­fer­rer header. Again, we’re talk­ing about the re­fer­rer header here.”

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