• by Wendy Davis  @wendyndavis, January 28, 2020

Android users want a federal appeals court to decide whether they can proceed with claims that Google violated California residents' privacy rights by allegedly tracking their locations.

“Given the gravity of the fundamental privacy interests at stake, and the dearth of recent guiding precedent construing them in the context of the nascent digital age, justice requires immediate appellate review,” the Android users argue in papers filed Monday with U.S. District Court Judge Edward Davila in San Jose, California.

They are asking Davila for permission to immediately appeal his December order that dismissed their case against Google.

The battle dates to 2018, when California residents including Napoleon Patacsil of San Diego alleged in a class-action complaint that Google's location tracking practices violated the California Invasion of Privacy Act, the state Constitution, and a separate prohibition on "intrusion upon seclusion” -- a broad privacy concept that involves an intentional and “highly offensive” intrusion into a private place.

The lawsuit came several days after The Associated Press reported that the company stores location data gleaned from some services, including search and maps, even when users turn off the “Location History” setting. The AP report said users must turn off a separate "Web and App Activity” to prevent Google from collecting and storing location data from services like maps.

Davila said in his December ruling that the allegations in the complaint were too speculative to support a claim that Google collected “sensitive and confidential” information.

“Plaintiffs claims are too conclusory and the court cannot assess whether plaintiffs had a legally protected privacy interest in the specific places they went or even how often their geolocation was accessed,” Davila wrote.

He allowed the users to revise their claims that Google violated California's state constitution and engaged in "intrusion upon seclusion," but not the claim that Google violated the California Invasion of Privacy Act. That law prohibits companies from using an “electronic tracking device” to determine people's locations.

Davila wrote at the time that smartphones weren't the type of devices covered by the Invasion of Privacy law.

Patacsil and the other users now say they want the 9th Circuit to review the entire matter, arguing that questions about the types of devices covered by the California Invasion of Privacy Act are critical to the overall case.

“Guidance from the Ninth Circuit is sorely needed as geolocation tracking technology, and increasingly sophisticated means of accessing the information made available by mobile devices, become ever more present in our lives,” counsel for the users write.