Speaker 1: This is Bloombird Law with June Brusso from Bloombird Radio.
Speaker 1: We acknowledge that we have made mistakes in the past,
Speaker 1: from which we've learned and improved our privacy program. We
Speaker 1: must clearly explain how our products use personal information and
Speaker 1: provide easy to find, user friendly controls to manage privacy.
Speaker 1: Google's chief privacy officer, Keith Enwright, testified on Capitol Hill
Speaker 1: four years ago over concerns about how his company tracks
Speaker 1: consumer data. Now, Google has agreed to pay up for
Speaker 1: its controversial location tracking practices in the largest multi state
Speaker 1: privacy settlement in US history. Google will pay nearly three
Speaker 1: nine two million dollars in a settlement with forty states
Speaker 1: over allegations that the company secretly tracked users movements and
Speaker 1: provided the data to advertisers for years, even after consumers
Speaker 1: had turned off the location tracking feature. Location history has
Speaker 1: become particularly sensitive topic following the Supreme Court decision overturning
Speaker 1: the right to abortion, amid fears that prosecutors could use
Speaker 1: such data to track women's movements to enforce state abortion bands.
Speaker 1: Joining me is Eric Goldman, a professor at Santa Clara
Speaker 1: University Law School and co director of the High Tech
Speaker 1: Law Institute. How big a deal is this settlement? I mean,
Speaker 1: it's basically ten million dollars for each of forty states.
Speaker 1: The settlement itself is important in showing how the attorney
Speaker 1: generals are actively looking to redress privacy invasions the grand
Speaker 1: scheme of things. However, it's probably not as big of
Speaker 1: a deal as people might expect. Both the dollar amount
Speaker 1: is not a huge deal for Google, but also the
Speaker 1: way in which it's likely the changing the lives is
Speaker 1: going to be actually quite muted tell us what Google
Speaker 1: was accused of in this lawsuit. Google was accused of
Speaker 1: mishandling location information. This is about where people are at
Speaker 1: a specific period of time, and Google was accused of
Speaker 1: continuing to record location information even when people asked them
Speaker 1: not to, and in general the way it worked. There
Speaker 1: were various details, but the main aspect is that Google
Speaker 1: had several different ways of configuring the options, and so
Speaker 1: even if people turned off location information in one option,
Speaker 1: there might have been other options that the awesomey to
Speaker 1: turn off. And then Google was also alleged to be
Speaker 1: tracking and even if people were told they would never
Speaker 1: be tracking location information, so Google was effectively alleged to
Speaker 1: be lying to consumers about when it was collecting location information.
Speaker 1: Google says that it's stopped that practice. Is there any
Speaker 1: question that they've stopped that practice. I have no reason
Speaker 1: to believe that they continue to practice they were alleged
Speaker 1: to be engaged in. But we really don't understand all
Speaker 1: the different things Google is doing, so they might be
Speaker 1: doing something else nefarious that we don't don't really know.
Speaker 1: But the attorney generals have identified eight specific things they
Speaker 1: wanted to Google to fix. I'm going to assume that
Speaker 1: Google either fixed it or stopped it. As part of
Speaker 1: the deal, Google also agreed to significantly improve its location
Speaker 1: tracking disclosures and user control starting next year. I have
Speaker 1: to tell you that I find all these location tracking
Speaker 1: devices and confusing to try to turn off because if
Speaker 1: you turn off one thing, oh, then you can't have this. Yes,
Speaker 1: And to be fair, there are many times that actually
Speaker 1: we benefit from services tracking our location and information. And
Speaker 1: I'll just give you one quick example with hiking on
Speaker 1: my mostrsification and I had trail maps that I had
Speaker 1: downloaded where I was able to track whether I was
Speaker 1: on the trail or not. And that's actually kept me safe.
Speaker 1: It saved my time, saved war, and tear on my knees.
Speaker 1: So the fact that the services use location from men
Speaker 1: can be and that positive. The point of the AGES
Speaker 1: enforcement is that we should be in charge of when
Speaker 1: location information about us is used. We should have that choice.
Speaker 1: It shouldn't be taken away from us. I know that
Speaker 1: Arizona sued Google and secured million dollars because of the
Speaker 1: state's consumer fraud Act. So do other states have similar
Speaker 1: consumer acts that Google has to be careful with. Yeah,
Speaker 1: the AGES used generally their standards consumer protection laws to
Speaker 1: crack down on Google, basically saying that Google applied to
Speaker 1: consumers um and that's standard issues for the attorney generals
Speaker 1: to deal with. However, there's a new class of laws
Speaker 1: have been coming out in the last five years essentially
Speaker 1: since Google is alleged to be violating these laws that
Speaker 1: provide extra protection for location information. And it's really those
Speaker 1: laws are become the centerpiece of any future action to
Speaker 1: control location information, and it's those laws that are likely
Speaker 1: to really dominate how we as consumers interact with services
Speaker 1: like Google, whether such our location information. In other words,
Speaker 1: the AGES enforcement dealt with old law and old practices.
Speaker 1: The new law will come into a fact that will
Speaker 1: significantly impact location information across the board. Do most states
Speaker 1: have those laws? No, let's call them consumer privacy laws.
Speaker 1: California act at the first, starting into that in eighteen.
Speaker 1: It has since replaced that law with a new law
Speaker 1: coming into effect in January called the California Privacy Rights Act.
Speaker 1: And less than half dozen states have enacted some variation
Speaker 1: of the two California laws, but they're growing rapidly. Other
Speaker 1: states will enact them shortly, and most importantly, because Google
Speaker 1: is located in California, they're likely to comply with that
Speaker 1: law across the board, not just in California. So when
Speaker 1: californ Onias law comes into effect, it's likely to set
Speaker 1: a national standard, at least through sectors services like Google.
Speaker 1: As far as possible criminal prosecutions under abortion bands, there
Speaker 1: are fears that some state prosecutors could use location data
Speaker 1: to track women's movements and prosecute them. Google has said
Speaker 1: it would automatically delete records of users visits to sensitive
Speaker 1: locations like abortion clinics, But can we trust that they're
Speaker 1: going to do that and also that their method will
Speaker 1: be effective? Obviously, the Google will define what it means
Speaker 1: by sense of locations. It might be that it won't
Speaker 1: be comprehensive from our perspective as consumers, But the point
Speaker 1: is that they're trying to come up with ways of
Speaker 1: controlling location information that are more pro consumer. Because of
Speaker 1: the fact that location information is so sensitive, placing a
Speaker 1: person in a particular spot in time creates all kinds
Speaker 1: of potential safety and legal risk. And so that's why
Speaker 1: I think that the e G settlement is really dealing
Speaker 1: with a legacy issue because of the fact that we
Speaker 1: know so much more today than we didn't do that
Speaker 1: in eighteen about how important is to protect location information. Eric,
Speaker 1: has there been a lawsuit where something terrible happened to
Speaker 1: someone because of location tracking? I don't attract the cases
Speaker 1: that way, but a classic example of ways that things
Speaker 1: can go wrong is with tracker devices that a x
Speaker 1: UH significant other will place onto a victim's car. By
Speaker 1: doing that, they can then track where that person is,
Speaker 1: and in some cases that's led to physical attacks on
Speaker 1: the victim because the criminal knew where to find a person.
Speaker 1: I was reading all these articles about how to turn
Speaker 1: things off, and I went to my iPhone. Now I
Speaker 1: realized I can't turn it off completely because then I
Speaker 1: can't use the iPhone funds and I can't use Google
Speaker 1: Maps and all this stuff. That gets the point the
Speaker 1: doesn't June. That really hits the name on the head
Speaker 1: that location information is vye able resource that we want
Speaker 1: some services to use in certain circumstances because it literally
Speaker 1: makes our lives better and helps keep us safe and
Speaker 1: gives us information that we want on the spot. So
Speaker 1: we don't want to categorically turn off location information. That
Speaker 1: would be a misstep. But we do want services to
Speaker 1: listen to us. If we say don't check us now,
Speaker 1: we need them to honor that. And that really was
Speaker 1: the point of the agis enforcement. And you think that
Speaker 1: at least Google and perhaps Facebook, that they've learned a lesson.
Speaker 1: I don't know if they've learned a lesson. I think
Speaker 1: that the new consumer privacy laws that are rolling out
Speaker 1: will force them to change their behavior, even if they
Speaker 1: would prefer not to. So I don't think this particular
Speaker 1: settlement is going to teach them that lesson. I think
Speaker 1: the other laws will cause them to take it seriously.
Speaker 1: The bottom line is that I think services like dog
Speaker 1: on Facebook now realize just how sensitive location information is,
Speaker 1: and they're being forced to do better. Zarek always a pleasure,
Speaker 1: that's Eric Goldman, a professor at Santa Clara University Law
Speaker 1: School and co director of the High Tech Law Institute.
Speaker 1: President Joe Biden's planned to cancel billions of dollars in
Speaker 1: student loans is in jeopardy because of legal challenges that
Speaker 1: could mean no one receives a dollar of debt relief.
Speaker 1: The White House insists it will ultimately prevail, even though
Speaker 1: two federal courts blocked the program from taking effect. The
Speaker 1: setbacks have rattled supporters, who fear that more than forty
Speaker 1: million Americans who expected relief will instead start getting billed
Speaker 1: for their student debt in January, when a pandemic Ara
Speaker 1: moratorium on payments is slated to expire. Joining me is
Speaker 1: elliott Stein Bloomberg Intelligence Senior litigation analyst. So has the
Speaker 1: problem in these lawsuits been having a plaintiff that has
Speaker 1: standing to sue? Yeah, that was definitely a hurdle u
Speaker 1: in some of the early lawsuits, and a couple of them,
Speaker 1: a couple of the lawsuits were dismissed because of standing. Right,
Speaker 1: you know, it's a basic tenet of litigation in the
Speaker 1: US that in order to sue, you have to have
Speaker 1: some sort of concrete and direct injury, otherwise our courts
Speaker 1: will just be flooded with you know, fabulous litigation. So
Speaker 1: we had several lawsuits filed challenging the student loan plan.
Speaker 1: Like I said, the first couple were tossed because the
Speaker 1: plaintiffs couldn't show that they were you know, injured by
Speaker 1: the plan in a concrete or direct way. But more
Speaker 1: recently we've had a couple lawsuits, including one where according
Speaker 1: Texas essentially throughout the plan inside it was unconstitutional, and
Speaker 1: it found that the plaintiffs in that case were properly
Speaker 1: injured sufficiently to bring a lawsuit that case, the Texas case,
Speaker 1: is that the only case where the judge got to
Speaker 1: the merits of the Biden administration's loan forgiveness plan. It
Speaker 1: is is it is, and it's interesting because it's interesting
Speaker 1: how he got to the merits. The borrowers in that
Speaker 1: case said that they were injured because they couldn't provide
Speaker 1: notice and comment on the plan, and the government responded
Speaker 1: and said, well, you know the Heroes Act that we
Speaker 1: think authorizes the plan doesn't say that we have to
Speaker 1: give a notice in comment period um for this kind
Speaker 1: of plan. And the judge said, well, you know, I'm
Speaker 1: going to jump to the merits, and on the merits,
Speaker 1: I don't think the plan is authorized under this statute.
Speaker 1: And as a result, you know, the language and the
Speaker 1: statute saying that you don't need death notice and comment
Speaker 1: doesn't even apply. And so that's how we got the standing.
Speaker 1: It was sort of mixing both the standing issue and
Speaker 1: the merits issue, and that's how he got to it.
Speaker 1: I mean, he did it back, which you're supposed to
Speaker 1: find do the plaintiffs have standing first, that's before you
Speaker 1: even get to the merits. Yeah, it was a little
Speaker 1: bit unusual, you know, a little bit maybe creative or clever.
Speaker 1: I'm not sure he's actually going to get reversed on that. Um.
Speaker 1: You know, it's going to go to the Fifth Circuit
Speaker 1: from there. But I agree he's sort of he sort
Speaker 1: of conflated the two, you know, the standing issue and
Speaker 1: the merritie issue. But at the end of the day,
Speaker 1: you know, from there it's going to go to the
Speaker 1: fifth Circuit. And I don't see this judge getting reversed there.
Speaker 1: The Tift Circuit is one of the most conservatives in
Speaker 1: the country, and I don't think it's I don't think
Speaker 1: he's gonna get reverse at the Supreme Court either. In
Speaker 1: that case, it was two borrowers who were partially or
Speaker 1: fully ineligible for the loan forgiveness. So they're saying we
Speaker 1: have standing because we're not getting what other people got.
Speaker 1: Exactly one one of the borrower's loans were commercially held
Speaker 1: in the plan. You know, the Bitdom administration had tweeked
Speaker 1: its plans so that it would only apply to loans
Speaker 1: held by the Department of Education and not privately held
Speaker 1: loans um. And so that person said, well, I can't
Speaker 1: participate in the plan because my loans are commercially held.
Speaker 1: And then the other borrower in that case was eligible
Speaker 1: for the ten thousand dollar forgiveness but not eligible for
Speaker 1: the higher amount of forgiveness UM that PELL grant recipients
Speaker 1: are eligible for. And so they said, you know, we
Speaker 1: can't participate in this plan. And you know, have there
Speaker 1: been a notice in common period, we could have at
Speaker 1: least given our thoughts, but we were protruded from doing
Speaker 1: that as well. So that that's the injuries that they
Speaker 1: pointed to. It sounds a little tenuous to me. Yeah,
Speaker 1: I mean, you know, I was surprised by two. I
Speaker 1: didn't think those kinds of injuries would be you know,
Speaker 1: concrete and direct enough you know, to get standing. But
Speaker 1: the studs, you know, like we talked about, he sort
Speaker 1: of got around that by jumping to the merits finding,
Speaker 1: you know, that that the plan was not authorized under
Speaker 1: the statute that the administration pointed to, and so then
Speaker 1: he sort of backed into standing in that way. But
Speaker 1: I'm not confident he's gonna get reversed. Why do you
Speaker 1: think the Supreme Court wouldn't reverse him? You know, I
Speaker 1: think they're certainly on the merits they're going to agree
Speaker 1: with him. And you know, I'm not sure that what
Speaker 1: he did is entirely um not allowed, uh you know,
Speaker 1: and in some sense, I um, you know, I think
Speaker 1: they'll probably find a way to agree with that judge
Speaker 1: in order to buy the plans from from being implemented.
Speaker 1: Supreme Court Justice Amy Coney Barrett has refused twice though,
Speaker 1: to block Biden's student loan relief plan without comment. So
Speaker 1: it could just be because she's waiting for appeals to
Speaker 1: play out. Yeah, I think that's exactly right. The two
Speaker 1: cases were really like even bigger stretchers in terms of standing. Right.
Speaker 1: In one of those cases, it was a borrower in
Speaker 1: Indiana who said his state income taxes would go up
Speaker 1: if she was automatically enrolled in the plan. But the
Speaker 1: administration has already changed the plan to say that borrowers
Speaker 1: would not be automatically enrolled and they could opt out
Speaker 1: if they wanted to. And then the other case was
Speaker 1: just a general taxpayer grievance saying that, you know, public
Speaker 1: funds should not be used for this, and and that
Speaker 1: kind of standing has almost always been precluded by the
Speaker 1: Supreme Court. Those cases were much weaker in terms of standing. Well,
Speaker 1: let's talk about the lawsuit that went up to the
Speaker 1: Eighth Circuit. Six Republicans states brought the lawsuit. What was
Speaker 1: their argument. There were arguing a few things, but sort
Speaker 1: of broadly speaking, you know, the overarching theory of their
Speaker 1: case was that services that were instrumentalities of those states
Speaker 1: would be injured because if the loan balances were reduced,
Speaker 1: they were earned less income in terms of servicing those loans.
Speaker 1: What's interesting is um a lot of those services primarily
Speaker 1: service commercially held loans privately held loans, and so in
Speaker 1: response that I lawsuit, originally the administration tweaked its plan
Speaker 1: and narrowed it so that it would only apply to
Speaker 1: federally held loans and not privately held loans. But one
Speaker 1: of their services in that case, in the state of Missouri,
Speaker 1: also service federally held loans, and so the trial court
Speaker 1: judge in that case said, well, actually, you know, Missouri
Speaker 1: can't Missouri and the state services are actually separate entities.
Speaker 1: Missouri shouldn't be able to sue on behalf of the servicers.
Speaker 1: The servicer thinks it's injured, it should see on its own.
Speaker 1: So the trial court dismissed that lawsuit. But the Eighth
Speaker 1: Circuit said, well, actually, you know, the servicer could be
Speaker 1: an arm of the state. It looks like it likely
Speaker 1: is an army of the state. So we're gonna put
Speaker 1: there the administration's plan on hold while this appeal praised out,
Speaker 1: So they didn't reach the marriage. They didn't fully decide
Speaker 1: standing yet even but you know, it looks like they're
Speaker 1: leaning towards finding standard, and then once once they find standard,
Speaker 1: I'm I'm quite sure they'll also um reject the plan
Speaker 1: on the merits. The Eighth Circuit is dominated by judges
Speaker 1: named by Republican presidents, and on the panel were three
Speaker 1: judges appointed by Republican presidents. Yeah, Eighth Circuit an acests,
Speaker 1: you know, dominated by judges is appointed by Republican presidents.
Speaker 1: But you know, I always say, you know, judges appointed
Speaker 1: by Republicans are less likely to defer to agency action.
Speaker 1: But you know that's that's a generalization. It doesn't always hold.
Speaker 1: The trial court judge in that case was a George W.
Speaker 1: Bush appoint due, and he dismissed the lawsuit. And you
Speaker 1: know it's turned out different on appeal. Is the Biden
Speaker 1: administration appealing this Eighth Circuit decision to the Supreme Court.
Speaker 1: So the Eighth Circuit decision, you know, that appeal is
Speaker 1: still playing out, right, All all the Eight Circuit said
Speaker 1: was that they're putting the plan on hold while the
Speaker 1: appeal plays out. Now, the administration could um asked the
Speaker 1: Supreme Court, uh, you know, to undo the stay of
Speaker 1: the plan. I think that's highly unlikely to succeeded, because
Speaker 1: you know, it makes sense to sort of keep the
Speaker 1: status quo while litigation plays out. But they have already
Speaker 1: appealed their Texas judges decisions to the Drift Circuit so
Speaker 1: that that one will proceed. And in the meantime, what's
Speaker 1: happening to the people who are applying or were applying
Speaker 1: for student loans forgiveness? So applications that were already made
Speaker 1: before these decisions are you know, just held in limbo.
Speaker 1: And since these decisions have come out in the last
Speaker 1: couple of weeks, the administration has basically suspended the application process,
Speaker 1: so you can't even apply for forgiveness at this point.
Speaker 1: This help services for privately owned loans. Yeah, so you know,
Speaker 1: in in that UM in the Eighth Circuit case, in
Speaker 1: the in the trial Corps when when those when that
Speaker 1: when that lawsuit was first filed, the admitted the administration's
Speaker 1: plan originally would have allowed forgiveness for both loans held
Speaker 1: by the Department of Education, but also federal loans that
Speaker 1: were held by private uh entities, commercial entities. UM. What
Speaker 1: fear was that a lot of the services like you know,
Speaker 1: maybe like Navy and UM or Discover uh, you know,
Speaker 1: companies that that service commercially held loans would sue. They
Speaker 1: never did, but but that's but some of the services
Speaker 1: that were state instrumentalities are there are six GOP states
Speaker 1: at SUD did service commercially held loans. So what the
Speaker 1: administration did to try to essentially undercut those lawsuits was
Speaker 1: that they narrowed the plan and they said only federally
Speaker 1: held loan loans will be eligible for forgiveness and not
Speaker 1: commercially held loans. And so that basically took away the
Speaker 1: possibility of lawsuits by servicers um that service commercially held loans,
Speaker 1: Like I said that the Missouri servicer also services federally
Speaker 1: held loans, and so they they're still in the case.
Speaker 1: But companies like you know, like Navy and Salary may
Speaker 1: discover the they're essentially already helped by the administration narrowing
Speaker 1: the plan only to federally held loans, which they don't
Speaker 1: even service. So in your opinion, the merits of the
Speaker 1: case are weak for the administration because it based it
Speaker 1: on the Heroes Act. Yeah, I mean, the way I
Speaker 1: would say it is that you know it um. You know,
Speaker 1: judges who have subscribed to the philosophy of the major
Speaker 1: questions dock in um and who want to sort of
Speaker 1: cretail the administrative state certainly are gonna find the Administration's
Speaker 1: justification for us in the Heroes Act is weak um.
Speaker 1: And we've already seen that, you know, with the judge
Speaker 1: in Texas with the Eighth Circuit to some extent um.
Speaker 1: And you know, we we've seen it previously with the
Speaker 1: administration trying to use covid um to get certain things done,
Speaker 1: like the eviction moratorium. You know, they tried to uh
Speaker 1: you the court said that CDC couldn't use um, that
Speaker 1: they didn't have statutory authority to enact in eviction moratory.
Speaker 1: And same with start trying to get an employee vaccine mandate.
Speaker 1: So you know, we're sort of in this state where um,
Speaker 1: you know, Conservatives certainly dominates the Suppreme Court and the
Speaker 1: Fifth Circuit and the Eighth Circuit and some other circuit courts,
Speaker 1: and that they subscribe to the Major Questions doctrine. And
Speaker 1: unless you have a statute that really specifically authorizes um,
Speaker 1: you know, action that has you know, national and economic importance,
Speaker 1: you know they're they're going to reject agency action unless
Speaker 1: you can really point the specific statutory authority. Thanks so much, Elliott.
Speaker 1: That's Bloomberg Intelligence, Senior Litigation analyst, Elliot Stein. For more
Speaker 1: of elliotts analysis, you can go to b I go
Speaker 1: on the Bloomberg Terminal. And that's it for this edition
Speaker 1: of The Bloomberg Law Show. Remember you can always get
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Speaker 1: night at ten pm Wall Street Time. I'm June Grossow,
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