Antitrust Law Daily Wrap Up, PRIVACY NEWS: Google agrees to multi-state settlement over tracking on Safari web browser, (Nov 19, 2013)

By Jeffrey May, J.D.

The attorneys general of 36 states and the District of Columbia announced yesterday that they have entered into a $17-million settlement with Google Inc. over the company’s alleged circumvention of the default privacy settings in Apple, Inc.’s Safari web browsers during 2011 and 2012.

The mutli-state settlement follows Google’s agreement last year to pay a record-setting $22.5 million civil penalty to resolve similar FTC charges. The FTC had alleged that the conduct violated the terms of a 2011 FTC consent order. Under that consent order, the company agreed to implement a comprehensive privacy program to settle charges that it violated Gmail users’ privacy and acted deceptively when it introduced its now-retired social networking service Google Buzz.

The Assurance of Voluntary Compliance resolves the states’ contentions that Google violated state consumer protection and privacy laws through its unauthorized placement of “cookies” on computers using Apple Safari Web browsers. Google, through its DoubleClick advertising platform, uses cookies to gather information, including information about consumers’ web browsing habits.

Apple’s Safari Web browser purportedly was set by default to block third-party cookies, including cookies set by DoubleClick; Google, however, altered its DoubleClick coding to circumvent those default privacy settings on Safari, without consumers’ knowledge or consent, according to the states. This enabled the search engine company to put DoubleClick cookies on consumers’ Safari Web browsers. Google reportedly disabled this coding method in February 2012, after the practice was widely reported on the Internet and in the media. The challenged conduct took place between June 2011 and February 2012.

In addition to agreeing to pay $17 million to the states, Google has pledged to refrain from deploying the type of code used in this case to override a browser’s cookie blocking settings without the consumer’s consent (unless necessary to prevent fraud or under certain other limited exceptions). Google also will refrain from misrepresenting or omitting material information to consumers about how they can use any particular Google product, service, or tool to directly manage how Google serves advertisements to their browsers.

Under the multi-state settlement, Google agreed to improve the information it provides consumers regarding cookies and to ensure the expiration of the third-party cookies set on Safari Web browsers while their default settings had been circumvented.

The $17 million will be divided among the settling states. The money may be used for civil penalties, attorney fees, investigation and litigation costs, or it may be applied to state consumer protection law enforcement funds, at the discretion of each state attorney general.

“By tracking millions of people without their knowledge, Google violated not only their privacy, but also their trust,” New York Attorney General Eric Schneiderman said in announcing the settlement. “We must give consumers the reassurance that they can browse the Internet safely and securely. My office will continue to protect New Yorkers from any attempts to deliberately expose their personal data.”

The states that are parties to the settlement are: Alabama, Arizona, Arkansas, California, Connecticut, the District of Columbia, Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, Washington, and Wisconsin. The settlement’s executive committee included Connecticut, Florida, Illinois, Maryland, New Jersey, New York, Texas, Vermont, and Washington.

Through a spokesperson, Google acknowledged the settlement and said that the company was “pleased to have worked with the state attorneys general to reach this agreement.”

News: Privacy