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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: They want to silence me, because I will never let

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Speaker 2: them silence you. And in the end, they're not after me,

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Speaker 2: They're after you. I just happened to be standing in

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Speaker 2: their way, and I always will say it in their way.

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Speaker 1: Donald Trump's presidential campaign seems to be driven by grievance

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Speaker 1: over the four criminal cases against him. It's a campaign

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Speaker 1: narrative where Trump is the victim of an unfair justice system,

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Speaker 1: the target of a witch hunt, and somehow he comes

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Speaker 1: to the conclusion that he's just standing in for his supporters.

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Speaker 1: Trump often vilifies the prosecutors bringing the cases, in particular

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Speaker 1: Special counsel Jack Smith.

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Speaker 2: And did you see today that deranged Jack Smith. He's

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Speaker 2: the prosecutor, He's a deranged person, wants to take away

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Speaker 2: my rights under the First Amendment.

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Speaker 1: But Smith is attempting to stop Trump from bringing his

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Speaker 1: politics and misinformation into the courtroom during his criminal trial

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Speaker 1: for election interference. He's filed emotion asking Judge Tanya Chutkin

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Speaker 1: to bar Trump from introducing certain potential defenses. Joining me

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Speaker 1: is former federal prosecutor Robert Mintz, a partner at Macarter

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Speaker 1: and English. So Special Counsel Jack Smith filed the motion

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Speaker 1: last Wednesday to prevent Trump and his defense lawyers from

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Speaker 1: turning quote, the courtroom into a forum in which he

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Speaker 1: propagates irrelevant disinformation. Is this basically emotion designed to stop

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Speaker 1: the expected circus that comes with Trump. I mean, we

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Speaker 1: saw it in the New York civil case by the

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Speaker 1: Attorney General.

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Speaker 3: Sure, these are critical motions that were filed by the

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Speaker 3: special counsel in order to limit the scope of where

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Speaker 3: the defense can actually go during this trial. So what

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Speaker 3: mister Smith did was to file with the judge a

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Speaker 3: motion barring ten different forms of evidence that he anticipates

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Speaker 3: that the Trump defense may raise a trial. These are

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Speaker 3: what's called pre trial evidentiary rulings or inlimit emotions, where

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Speaker 3: a judge is asked before a trial to make a

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Speaker 3: ruling as to what evidence can be permitted and what

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Speaker 3: evidence has to be excluded from the trial. And they

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Speaker 3: could be filed by both sides. The defense can file

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Speaker 3: it in an liimity motion, so can the prosecution. But

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Speaker 3: what we're seeing here is an attempt by the prosecutor

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Speaker 3: to rein in what could be a very far flung

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Speaker 3: defense and in the eyes of prosecutors, an attempt to

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Speaker 3: distract the jury and to politicize this case on a

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Speaker 3: whole series of issues that do not go directly to

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Speaker 3: the evidence that will ultimately convict or ecquit former President

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Speaker 3: Trump at trial.

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Speaker 1: So this kind of motion called emotion and leimonae, as

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Speaker 1: you mentioned, is common, isn't it.

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Speaker 3: It's quite calm, and it's filed in many criminal cases.

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Speaker 3: And again, what you try to a voice here is

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Speaker 3: a issue coming up in the middle of the trial.

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Speaker 3: You've got jurors and paneled, they're sitting there, they've been

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Speaker 3: hearing a case for a while. What the judge doesn't

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Speaker 3: want and what the prosecution doesn't want, is to go

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Speaker 3: into a big argument about some issue as to what

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Speaker 3: can be admitted to trial, what can't be admitted in trial.

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Speaker 3: And in order to give both sides a fair opportunity

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Speaker 3: to prepare adequately for the trial, prosecutors will often ask

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Speaker 3: a judge before a trial begins to limit in some

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Speaker 3: way the evidence that the defense is allowed to present

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Speaker 3: to the jury during the trial.

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Speaker 1: Tump has repeatedly said this is a vindictive prosecution directed

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Speaker 1: by Joe Biden and constitutes election interference. Smith wants to

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Speaker 1: prevent him from raising selective prosecution during the trial. What

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Speaker 1: are the standards the judge will use? I mean, is

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Speaker 1: it relevance, prejudicial? What kind of standards?

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Speaker 3: Well, that's a great question. I think the two themes

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Speaker 3: that we are going to see the defense try to

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Speaker 3: go after here are selective prosecution, as you say, and

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Speaker 3: also the concept of election interference. The selective prosecution argument

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Speaker 3: is basically trying to argue that similarly situated defendants have

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Speaker 3: been treated differently by prosecutors, and that the defendant in

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Speaker 3: this case is being singled out for some improper motive.

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Speaker 3: So to give a very simple example of selective prosecution,

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Speaker 3: if you're driving down the New Jersey turnpipe and there's

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Speaker 3: ten people speeding and they pull only you over and

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Speaker 3: the other nine people are not pulled over, even though

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Speaker 3: everybody is perhaps speeding, and you're the only one who

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Speaker 3: gets a ticket, you can't really raise selective prosecution there

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Speaker 3: to say that it's unfair that you were ticketed and

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Speaker 3: they were not. You have to go beyond that and

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Speaker 3: to show that you were singled out for some kind

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Speaker 3: of improper motive, that you were targeted for some reason

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Speaker 3: that is constitutionally impermissible. So in this case, to raise

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Speaker 3: selective prosecution is going be extremely difficult, just because there's

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Speaker 3: really nothing to compare this case too. It's so unique,

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Speaker 3: it's so unprecedented that to say that former President Trump

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Speaker 3: is being singled out here, what other similar situated defendants

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Speaker 3: may have been treated differently is going to be a

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Speaker 3: very tall mountain decline here and unlikely to be successful.

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Speaker 1: Smith also wants Trump to be prevented from blaming the

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Speaker 1: events of January sixth on the Capitol Police, the National Guard,

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Speaker 1: or the DC mayor, in other words, law enforcement's failure.

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Speaker 1: And he said, a bank Robert cannot defend himself by

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Speaker 1: blaming the bank security guard for failing to stop him.

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Speaker 1: I'm just wondering because a lot of times at trial,

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Speaker 1: the defendants will point to other people. You know, I

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Speaker 1: didn't do anything wrong, but he did, she did. Is

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Speaker 1: the special counsel trying to prevent Trump from doing that?

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Speaker 3: Yeah, That's exactly what's going on here. Judges are often

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Speaker 3: placed in the very difficult position in criminal trials to

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Speaker 3: decide what defenses are permissible and what defense is there

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Speaker 3: are going to exclude a trial, And the one hand,

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Speaker 3: a judge is always trying to give a defendant a

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Speaker 3: fair trial, to allow them to try their case, to

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Speaker 3: present their defenses, to force the government to meet the

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Speaker 3: burden of proof, because as always in a criminal case,

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Speaker 3: the burden is always with the prosecution, it never shifts

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Speaker 3: to the defense, and the government has to prove its

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Speaker 3: case beyond a reasonable doubt. So a judge is going

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Speaker 3: to be very careful not to unfairly tie the defense's

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Speaker 3: hands and let them avail themselves of any reasonable defense.

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Speaker 3: But on the other hand, what a judge cannot let

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Speaker 3: happen is a trial gets completely out of control, where

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Speaker 3: the defense tries to go down rabbit holes of issues

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Speaker 3: that are not really relevant, that don't go directly to

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Speaker 3: the guilt or innocence or the burden of proof that

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Speaker 3: the government has to meet in order to get a

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Speaker 3: conviction at the end of trial. And in this case,

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Speaker 3: because it's been so highly politicized, it is extremely important

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Speaker 3: here that the judge reigns in the defense and only

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Speaker 3: allows them to present defenses for which there is a

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Speaker 3: reasonable basis. In other words, as a defense player, you

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Speaker 3: can't just present any fanciful defense. You dream up. There's

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Speaker 3: got to be some evidential basis to support that defense,

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Speaker 3: and that is what the jail you will have to

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Speaker 3: decide here. So in this case, the argument about that

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Speaker 3: it's the fault of the Capitol Police or the National

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Speaker 3: Guard or the mayor for not preventing January sixth is

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Speaker 3: really beside the point from the prosecution standpoint. For the

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Speaker 3: reason you just stated that you can't commit a crime

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Speaker 3: and then blame it on law enforcement for failing to

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Speaker 3: prevent it from happening, and that is what prosecutors are saying.

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Speaker 3: The Trump team is trying to argue here.

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Speaker 1: There's a lot that they want to prevent evidence from

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Speaker 1: coming in on. They want to prevent evidence of alleged

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Speaker 1: to foreign influence in the twenty twenty presidential election. They

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Speaker 1: argue that Trump should be prohibited from arguing he was

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Speaker 1: personally tricked by foreign disinformation about the election, or that

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Speaker 1: foreign disinformation campaigns led to the January sixth riot. And

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Speaker 1: it just comes to mind cases where it seems like

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Speaker 1: defense attorneys throw everything at the wall just to see

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Speaker 1: what sticks, and is a special counsel trying to prevent

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Speaker 1: Trump from doing that?

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Speaker 3: Yeah, that's exactly what's going on, and that is exactly

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Speaker 3: the tension between the prosecutor and the defense. When you're

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Speaker 3: the prosecutor, you want this case to go in very focused,

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Speaker 3: very streamlined. You want everything during the case to be

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Speaker 3: presented to be focused directly on the evidence and whether

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Speaker 3: or not you've met your burden of proof. When you're

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Speaker 3: on the defense side, it's a completely different role that

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Speaker 3: you're playing. You're trying to raise every issue under the sun.

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Speaker 3: You're trying to bring in all kinds of extraneous and

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Speaker 3: perhaps irrelevant information, because at the end of the day,

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Speaker 3: if even one juror is confused by the evidence and

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Speaker 3: unable to vote to convict, then you have a victory.

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Speaker 3: There a hung jury, even one juror not voting for

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Speaker 3: viction means that the prosecution has to retry the case

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Speaker 3: all over again. So the defense is going to try

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Speaker 3: to raise a number of issues which they claim are relevant,

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Speaker 3: and here the foreign interference defense is something that they're

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Speaker 3: going to pursue, I think quite vigorously, and that defense

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Speaker 3: is basically asking for the government to give them access

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Speaker 3: the more government documents, including classified information from former President

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Speaker 3: Trump's administration, that he believes will back up his arguments

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Speaker 3: that the election result couldn't be trusted. In other words,

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Speaker 3: that they were outside on foreign influences that were providing

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Speaker 3: disinformation about the campaign. They're seeking access to intelligence about

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Speaker 3: Iran and China, for example, about interfering with the US politics.

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Speaker 3: All of this is trying to support the Trump defense

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Speaker 3: that his belief that the election was not there and

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Speaker 3: was not accurate was something that he believed in good faith,

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Speaker 3: and by raising proof of foreign interference, it's apports the

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Speaker 3: argument that his belief that the election was not properly managed,

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Speaker 3: it was not a fair result, was at least a

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Speaker 3: good faced belief, if not in fact true.

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Speaker 1: Coming up, can any trial judge rein in Donald Trump,

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Speaker 1: I'm June Gross. When you're listening to Bloomberg, I've been

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Speaker 1: talking to former federal prosecutor Robert Mints of McCarter and

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Speaker 1: English about Special counsel Jack Smith filing a motion to

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Speaker 1: stop Trump from injecting politics and misinformation into his criminal

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Speaker 1: trial for election interference. Bob Trump continues to repeat allegations

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Speaker 1: of election fraud. It's part of his campaign spiel, but

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Speaker 1: those claims have been nearly unanimously rejected by the courts

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Speaker 1: state and federal. So can Judge Judkins say no, this

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Speaker 1: can't come in, It's already been decided in other courts.

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Speaker 2: Yeah.

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Speaker 3: Absolutely, the judge can say that there is not a

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Speaker 3: credible basis to mount this defense. In other words, there

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Speaker 3: is not credible evidence that the election was not fair,

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Speaker 3: and the judge count point to the many decisions around

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Speaker 3: the country which found that there was no material interference

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Speaker 3: with the election to make the results unfair, and that

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Speaker 3: therefore there is not a bassist for the defense to

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Speaker 3: argue that there was some foreign interference that tampered with

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Speaker 3: the election results and allowed President Trump to have a

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Speaker 3: good faith belief that those results were unfair. And one

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Speaker 3: thing that the prosecution will prove to support that is

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Speaker 3: that I think we can expect to see them call

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Speaker 3: a series of former Trump officials, including former Attorney General

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Speaker 3: Bill Barr, vice President Mike Tence, for example, on others,

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Speaker 3: who would testify that not only do they believe the

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Speaker 3: election was fair, but that they told former President Trump

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Speaker 3: that they believed the election was fair, and therefore, the

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Speaker 3: prosecutors will argue that he had no good faith belief

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Speaker 3: that the election had been tampered with and in fact,

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Speaker 3: his actions in order to gin up the activities of

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Speaker 3: January six. We're done for the purpose of interfering with

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Speaker 3: the election, and not because he truly believed that the

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Speaker 3: election was unfair.

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Speaker 1: Now my question is this, will the judge look at

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Speaker 1: these and look at each one individually, make her decision

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Speaker 1: on each one individually, or will she try to balance

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Speaker 1: it out, you know, giving some to Trump so that

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Speaker 1: he has a means of defending himself and giving others

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Speaker 1: to the Special Council.

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Speaker 3: Well, I think the judge will look at each of

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Speaker 3: these defenses individually. Certainly, she'll look at the basis that

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Speaker 3: the defense has to raise them and weigh that against

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Speaker 3: the prosecution's argument that it's irrelevant or somehow prejudicial. And

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Speaker 3: that's the balancing actor she's going to have to engage in.

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Speaker 3: And I think we could expect her to bar outright

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Speaker 3: some of these defenses and for others to allow them in.

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Speaker 3: But perhaps up to a point. I do not think

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Speaker 3: they're going to see the judges barring all of these defenses.

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Speaker 3: But she's going to go through them one by one

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Speaker 3: and decide just which one is the defense can raise

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Speaker 3: and how far they can go in order to mount

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Speaker 3: that defense.

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Speaker 1: Smith is making this motion now, but the case has

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Speaker 1: been put on hold by the trial judge while Trump's

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Speaker 1: claims of presidential immunity work their way through the appellate

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Speaker 1: court and perhaps the Supreme Court. Why is Smith doing

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Speaker 1: this now? Is he trying to get ahead of the game,

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Speaker 1: or is this the right time for a trial that

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Speaker 1: was supposed to start on March fifth.

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Speaker 3: Well, as you say, the judge who has the trial

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Speaker 3: and the District of Columbia has temporarily froze these criminal

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Speaker 3: proceedings pending the appeal by former President Trump on whether

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Speaker 3: his conduct was immune from prosecution. So at this point

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Speaker 3: the trial can't really proceed, but the judge can receive

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Speaker 3: motions and at least review them and think about them

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Speaker 3: while they are in this period where they're waiting for

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Speaker 3: the Court of Appeals to rule. So while she can't

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Speaker 3: issue any decisions, she can look at those issues. And

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Speaker 3: what the prosecution trying to do here is tee these

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Speaker 3: things up so that when the Court of Appeals rules

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Speaker 3: and the prosecution expects that the immunity defense will be rejected,

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Speaker 3: the judge will quickly move to these various inlimni motions

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Speaker 3: that be able to rule on them quickly. Another thing

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Speaker 3: that's going on here is that we're seeing here a

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Speaker 3: real battle between the defense and the prosecution over who

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Speaker 3: controls the narrative in this case. And so what Special

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Speaker 3: Counsel Jack Smith has done here is these raised all

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Speaker 3: of these issues to try to get out in front

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Speaker 3: of the Trump defenses in order to put them on

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Speaker 3: the radar not only of the court, but also on

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Speaker 3: the public, to project in some ways exactly where the

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Speaker 3: prosecution is going, and to try to debunk and de

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Speaker 3: legitimize these defenses which prosecutors are expecting the Trump team

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Speaker 3: to raise. It really is a battle here over the

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Speaker 3: legal versus political view of this case. Prosecutors are going

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Speaker 3: to make this case all about the truth versus disinformation,

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Speaker 3: about proof versus propaganda, about the difference between a court

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Speaker 3: of law and the court of public opinion. And the

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Speaker 3: Trump team, on the other hand, is going to try

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Speaker 3: to make this case as political as possible. The political

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Speaker 3: world is the world that former President Trump inhabits. It's

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Speaker 3: what he's used to dealing with, and they're going to

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Speaker 3: try to raise the same themes that we have seen

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Speaker 3: in the campaign, a world of grievance, blaming, trying to

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Speaker 3: message something over and over and over again in the

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Speaker 3: court of public opinion so that it ultimately sinks in

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Speaker 3: and becomes truth. That's what I think we're going to

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Speaker 3: see from the defense here leading up to the trial.

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Speaker 1: And Bob, we saw in the Sam Bankman Freed trial

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Speaker 1: how the judge there really limited the defense. These kinds

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Speaker 1: of motions excluding evidence, are they issues that appellate courts

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Speaker 1: usually reserve for the trial judge and are hesitant to reverse.

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Speaker 3: Yeah, those are decisions that usually are given wide discretion

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Speaker 3: to the trial judge, who hears all the evidence, listens

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Speaker 3: to the arguments, and tries to decide the balancing act.

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Speaker 3: As I said a moment ago, the balancing between giving

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Speaker 3: the defense latitude to raise legitimate defenses, to raise issues

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Speaker 3: for which there is some evidentiary basis, and on the

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Speaker 3: other hand, not allowing the defense lawyers to turn the

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Speaker 3: trial into a circus where there are a host of

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Speaker 3: irrelevant issues that are put in front of a jury.

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Speaker 3: The prosecutors will say is being done in order to

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Speaker 3: prejudice the jury, or even perhaps an attempt by the

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Speaker 3: defense to obtain what's called jury nullification, that is, to

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Speaker 3: try to convince at least one juror to block any

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Speaker 3: attempts by prosecutors to prove their case. And what jury

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Speaker 3: nullification is, thankfully means is that even when prosecutors have

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Speaker 3: proven their case by beyond a reasonable doubt, which is

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Speaker 3: their standard, that one or more jurors may still vote

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Speaker 3: to ac quit for reasons unrelated to the evidence presented

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Speaker 3: at trial. So you're going to see that issue perhaps raised,

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Speaker 3: not directly, certainly because it's improper, but indirectly to try

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Speaker 3: to appeal to the politics, to the unfairness, to some

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Speaker 3: sense that the deck has been unfairly stacked against former

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Speaker 3: President Trump and therefore curers should not believe what prosecutors

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Speaker 3: are presenting to them at trial.

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Speaker 1: Judge Chuckkin has been on the bench for about a decade.

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Speaker 1: Before that, she was a seasoned public defender. But we

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Speaker 1: saw what happened in the New York courtroom where his

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Speaker 1: civil case was heard. Can any judge really rein in

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Speaker 1: Trump and his defense team?

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Speaker 3: Well, I think the judge is going to try to

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Speaker 3: do that. I think she's going to control her courtroom

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Speaker 3: very carefully, because one thing you can't do as a

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Speaker 3: judge has ever let your courtroom get out of control.

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Speaker 3: The judge controls everything that goes on in that courtroom.

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Speaker 3: The judge tells people when they can speak, when they

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Speaker 3: can't speak, the topics they can address, when they can

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Speaker 3: address them, and when the judge will decide the various issues.

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Speaker 3: So the judge has to always remain in control of

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Speaker 3: the courtroom. And I do think the judge is going

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Speaker 3: to have a difficult time reigning in former President Trump

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Speaker 3: and reigning in his defense lawyers, regardless of what these

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Speaker 3: rulings are. Because even if there are certain rulings about

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Speaker 3: certain defenses that the judge says in the pretrial motions

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Speaker 3: are inadmissible or inappropriate and that the defense can't raise,

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Speaker 3: you're going to see the defense trying to raise them anyway,

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Speaker 3: perhaps not directly, but at least indirectly. That's going to

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Speaker 3: be the theme of this trial. Is going to be

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Speaker 3: a battle between the law and the politics of how

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Speaker 3: January sixth unfolded.

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Speaker 1: I mentioned that this trial is on hold while that

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Speaker 1: issue of presidential immunity goes through the appellate process. Most

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Speaker 1: legal experts seem to think that Trump is not going

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Speaker 1: to win that that his claim of presidential immunity will

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Speaker 1: be rejected. What do you think.

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Speaker 3: I do think that the claim for presidential community will

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Speaker 3: be rejected, but it's now before the Court of Appeals.

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Speaker 3: As you said, Special Council of Jack Smith tried to

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Speaker 3: short search that process by taking it directly to the

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Speaker 3: United States Supreme Court bypassing the Court of Appeals. The

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Speaker 3: Supreme Court rejected that move, which is not to say

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Speaker 3: that the Supreme Court will not ultimately hear this issue,

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Speaker 3: but they wanted to allow the Court of Appeals to

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Speaker 3: decide the issue first. The DC Court of Appeals is

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Speaker 3: going to act very quickly. There's argument schedule for January

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Speaker 3: ninth on this issue, and I think we can expect

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Speaker 3: the decision fairly quickly, and then it will move to

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Speaker 3: the United States Supreme Court. But really this is a

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Speaker 3: race to the finish line for Special Counsel of Jack

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Speaker 3: Smith trying to get this case in before the elections,

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Speaker 3: and from the defense side, this is a slow and

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Speaker 3: deliberative process where they are trying to inject as many

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Speaker 3: issues into this case as possible because they have no

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Speaker 3: interest in seeing this case go to trial anytime soon.

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Speaker 1: Great Insights, as always Bob, thanks so much. That's Robert

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Speaker 1: Men's apartnerment CA or in English. Coming up next, Google

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Speaker 1: settles a five billion dollar privacy lawsuit. I'm June Gross.

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Speaker 1: When you're listening to Bloomberg, you may have used Google's

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Speaker 1: incognito mode in its Chrome browser, signified by a little

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Speaker 1: black hat in glasses. That's supposed to indicate that your

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Speaker 1: Internet browsing will be concealed or private. Well, Google has

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Speaker 1: agreed to settle a five billion dollar consumer class action

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Speaker 1: privacy lawsuit alleging that it essentially spied on people who

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Speaker 1: use the incognito mode, secretly tracking the Internet use of

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Speaker 1: millions of people who thought their browsing was private. The

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Speaker 1: terms of the settlement have not been disclosed. Joining me

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Speaker 1: is Austin Chambers, a partner at Dorsey and Whitney whose

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Speaker 1: practice focuses on data privacy and security compliance. Tell us

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Speaker 1: about this case against Google, what it's about in Google's defense, So.

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Speaker 4: This case of the Brown case was a case brought

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Speaker 4: against Google back in twenty twenty. This was a case

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Speaker 4: brought by several plaintiffs in California against Google, alleging that

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Speaker 4: Google collected information while users were using the Chrome browser

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Speaker 4: in what is called incognito mode, So that's the version

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Speaker 4: of the browser or higher box that's a similar one.

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Speaker 4: There are others across all the browsers that allegedly prevent

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Speaker 4: your data from being collected or track while you're on

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Speaker 4: the Internet. So these plaintiffs argue that Google, despite the

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Speaker 4: fact that you were using this incognito mode, Google was

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Speaker 4: in fact still collecting information about you, tracking you across

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Speaker 4: the Internet, collecting your browser history and so on and

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Speaker 4: so forth, basically continuing to spy on you, despite the

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Speaker 4: fact that they said that they wouldn't, And so they

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Speaker 4: brought this claim basically arguing that this was all valuable

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Speaker 4: data that if they thought they weren't giving to Google,

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Speaker 4: the Google's collecting anyway. And then they put that together

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Speaker 4: and I think this this came out to about five

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Speaker 4: billion dollars they alleged in unlawful, unauthorized data collection.

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Speaker 1: What was Google's defense or what was their response.

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Speaker 4: Google basically came back and defended saying that you know,

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Speaker 4: this is browsing data. It's not very valuable data. It's

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Speaker 4: just data about how you move around the Internet. Most

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Speaker 4: of it isn't data that actually relates to you specifically,

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Speaker 4: this is information about the sites that you visited, or

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Speaker 4: maybe the IP address from your device, which is just

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Speaker 4: basically a network idea string of numbers of sorts that

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Speaker 4: relates to your computer, but it doesn't identify you. And

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Speaker 4: they said that you know this isn't personal data, This

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Speaker 4: isn't data that subject to the wiretab acts or other

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Speaker 4: access plaintiffs alleged would be subject to those laws, you

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Speaker 4: can't collect unlawfully. And they also basically said, even if

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Speaker 4: that were the case, that you wouldn't have standing in court,

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Speaker 4: basically that you didn't have harms that would be sufficient

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Speaker 4: to confer standing in court. That you know the data

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Speaker 4: wasn't valuable or you weren't actually harmed. You can't prove

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Speaker 4: that you were financially or intangibly harmed in some way.

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Speaker 4: So therefore they try to get thrown out of court

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Speaker 4: multiple times.

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Speaker 1: Let's talk about In August, the trial judge rejected Google's

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Speaker 1: attempt to dismiss the lawsuit. She said it was an

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Speaker 1: open question whether Google had made a legally binding promise

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Speaker 1: not to collect users' data when they browsed in private mode.

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Speaker 1: Tell us a little bit about her decision.

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Speaker 4: Where this case was positioned leading up to August is

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Speaker 4: these plantists have brought these claims back in twenty twenty,

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Speaker 4: and they've been fighting in the interceding years as to

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Speaker 4: whether or not what they've alleged is actually a claim

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Speaker 4: under the law. And so Google had sought a motion

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Speaker 4: to dismiss saying is these aren't real claims. The law

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Speaker 4: doesn't recognize these claims as potential violations of the law.

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Speaker 4: So this is very early in the case and Google

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Speaker 4: was basically trying to say that these are not recognized claims.

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Speaker 4: And so what this decision meant in practice is that

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Speaker 4: these claims can proceed. This goes on to discovery, on

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Speaker 4: to trial, and we can actually see whether or not

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Speaker 4: Google actually violated the law. And so it's important because

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Speaker 4: for a long time historically, and why this case is

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Speaker 4: kind of a turning point, is that we're starting to

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Speaker 4: see the law recognize these types of claims, this type

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Speaker 4: of data collection, these types of behaviors really as something

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Speaker 4: that can form a cognizable claim. Historically, they had been

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Speaker 4: thrown out at these very early stages and not proceedings.

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Speaker 4: And I guess an interesting piece you mentioned that there

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Speaker 4: was a legally binding promise not to collect data, which

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Speaker 4: is an interesting issue onto its own in the sense

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Speaker 4: that oftentimes we view privacy policies as just a sort

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Speaker 4: of statement to practice. The way that Google had positioned

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Speaker 4: the product of the incognito mode within Chrome, the way

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Speaker 4: that their business operated, what they had told users, and

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Speaker 4: the way that they had set up their user agreements,

439
00:24:16,440 --> 00:24:18,880
Speaker 4: the planners were actually able to allege that Google did

440
00:24:18,920 --> 00:24:22,520
Speaker 4: actually make a contractual promise not to collect data, and

441
00:24:22,800 --> 00:24:25,679
Speaker 4: that their data collection practices in their privacy policy were

442
00:24:25,720 --> 00:24:27,639
Speaker 4: a contract between them and the user. At least that

443
00:24:27,760 --> 00:24:30,560
Speaker 4: was the allegation. So a very interesting sort of site

444
00:24:30,600 --> 00:24:31,879
Speaker 4: issue in the case tell.

445
00:24:31,800 --> 00:24:35,560
Speaker 1: Us about the trend of trying to rein in companies

446
00:24:35,680 --> 00:24:40,000
Speaker 1: use of dark patterns and deceptive conduct to get users

447
00:24:40,000 --> 00:24:42,520
Speaker 1: to agree to provide data. And if you could explain

448
00:24:42,600 --> 00:24:43,800
Speaker 1: that dark.

449
00:24:43,640 --> 00:24:47,960
Speaker 4: Patterns of course, So dark patterns are something I think

450
00:24:48,000 --> 00:24:50,560
Speaker 4: many people have probably heard, at least recently the last

451
00:24:50,600 --> 00:24:52,199
Speaker 4: couple of years. It's been a sort of trend and

452
00:24:52,200 --> 00:24:56,040
Speaker 4: we've seen this both from court cases and regulators from

453
00:24:56,040 --> 00:24:59,760
Speaker 4: the FTC. Dark patterns are sort of this notion that

454
00:25:00,040 --> 00:25:03,240
Speaker 4: companies will use some sort of interfaces that how or

455
00:25:03,320 --> 00:25:05,280
Speaker 4: how they interact with the consumer to try to get

456
00:25:05,280 --> 00:25:08,280
Speaker 4: them to consent or agree to provide data. And so

457
00:25:08,320 --> 00:25:10,439
Speaker 4: if you've ever gone to a website and they say like,

458
00:25:10,520 --> 00:25:12,360
Speaker 4: do you want to provide us this data? And they'll

459
00:25:12,359 --> 00:25:14,480
Speaker 4: give you two buttons. One says yes, one says no.

460
00:25:14,600 --> 00:25:17,199
Speaker 4: But yes isn't red, and no isn't green. This is

461
00:25:17,240 --> 00:25:19,680
Speaker 4: the sort of essential notion of a dark pattern, something

462
00:25:19,720 --> 00:25:21,960
Speaker 4: that would be confusing. You would expect green to beg

463
00:25:22,160 --> 00:25:24,160
Speaker 4: and say yes, and red to be no, and block

464
00:25:24,240 --> 00:25:26,639
Speaker 4: and stop. So this sort of you know, bait and switch.

465
00:25:26,720 --> 00:25:30,480
Speaker 4: This sort of deceptive conduct is sort of pervasive, especially

466
00:25:30,520 --> 00:25:33,159
Speaker 4: in cases where you're trying to collect data that people

467
00:25:33,200 --> 00:25:35,920
Speaker 4: may not want necessarily to give. And so we've seen

468
00:25:35,960 --> 00:25:38,440
Speaker 4: a lot of companies engaging in these types of behaviors

469
00:25:38,480 --> 00:25:40,640
Speaker 4: as the law has started to crack down on data

470
00:25:40,680 --> 00:25:44,679
Speaker 4: collection and consumers have become more sensitive the data collection

471
00:25:44,760 --> 00:25:48,040
Speaker 4: practices by companies, and so that's sort of the underlying issue.

472
00:25:48,280 --> 00:25:51,960
Speaker 4: And then here the issue with Chrome is that when

473
00:25:52,080 --> 00:25:54,600
Speaker 4: users open incognitom of one of the things that they

474
00:25:54,640 --> 00:25:58,240
Speaker 4: expect is that they're not being tracked. Google, for its part,

475
00:25:58,560 --> 00:26:00,800
Speaker 4: you click this little masked eye account. It looks like

476
00:26:01,440 --> 00:26:03,679
Speaker 4: a little spy and you click on him and he

477
00:26:03,760 --> 00:26:06,000
Speaker 4: takes you to incognito mode. You get a screen that

478
00:26:06,080 --> 00:26:08,880
Speaker 4: says that your information won't be tracked. Google won't keep

479
00:26:08,920 --> 00:26:11,600
Speaker 4: your history. It does tell you that other people may

480
00:26:11,640 --> 00:26:13,480
Speaker 4: be able to see it, like your employer or whoever

481
00:26:13,520 --> 00:26:16,040
Speaker 4: operates your network can still see some of the traffic

482
00:26:16,119 --> 00:26:18,960
Speaker 4: that your device is engaging in. But it does give

483
00:26:19,000 --> 00:26:21,760
Speaker 4: you this impression that you're browsing privately. And there's been

484
00:26:21,880 --> 00:26:24,480
Speaker 4: statements in the Privacy policy and in the settings mid

485
00:26:24,520 --> 00:26:27,000
Speaker 4: us and things like that where Google has indicated or

486
00:26:27,119 --> 00:26:29,919
Speaker 4: at least suggested that this type of tracking would not

487
00:26:29,960 --> 00:26:32,000
Speaker 4: occur and that you're in control of how your data

488
00:26:32,040 --> 00:26:34,760
Speaker 4: is being collected if you want to browse privately. All

489
00:26:34,840 --> 00:26:37,720
Speaker 4: this again leading consumers to believe they're not being tracked.

490
00:26:38,040 --> 00:26:40,960
Speaker 1: You say, the court applied to holistic approach. Explain what

491
00:26:41,040 --> 00:26:41,760
Speaker 1: you mean by that.

492
00:26:42,359 --> 00:26:44,840
Speaker 4: So the court in this particular case, and I think

493
00:26:44,840 --> 00:26:47,560
Speaker 4: it's a trend that we've seen across some of the

494
00:26:47,600 --> 00:26:50,800
Speaker 4: recent cases, is that courts when they're looking at these

495
00:26:50,840 --> 00:26:54,600
Speaker 4: types of consumer privacy claims, and historically there's been this

496
00:26:54,720 --> 00:26:57,800
Speaker 4: notion of what's called noticing consent. The idea is that

497
00:26:57,880 --> 00:27:00,320
Speaker 4: the website puts a privacy policy. They put in that

498
00:27:00,359 --> 00:27:03,240
Speaker 4: privacy policy that they may engage in some kind of

499
00:27:03,320 --> 00:27:06,119
Speaker 4: data collection, and then by continuing to use the site,

500
00:27:06,160 --> 00:27:09,320
Speaker 4: you have implicitly consented to the conduct that they describe.

501
00:27:09,359 --> 00:27:12,239
Speaker 4: It's been a sort of simplistic sort of thing in

502
00:27:12,280 --> 00:27:14,120
Speaker 4: this case and in the other cases we've seen, we've

503
00:27:14,119 --> 00:27:16,960
Speaker 4: started to see courts really kind of applying a more

504
00:27:16,960 --> 00:27:20,560
Speaker 4: holistic approach in two ways. First, from the sort of

505
00:27:20,600 --> 00:27:23,719
Speaker 4: consumer perspective, they're looking at these apps. They're looking at

506
00:27:23,800 --> 00:27:27,520
Speaker 4: dark patterns. They're looking at how a service is presented

507
00:27:27,560 --> 00:27:30,960
Speaker 4: to a user, what representations the website operator makes or

508
00:27:31,280 --> 00:27:34,760
Speaker 4: even suggests about how their service works. They're not taking

509
00:27:34,800 --> 00:27:38,040
Speaker 4: this formalistic approach looking at the privacy policy, looking for

510
00:27:38,080 --> 00:27:40,119
Speaker 4: the magic words, and the privacy policy is moving on.

511
00:27:40,400 --> 00:27:43,080
Speaker 4: They're saying, Okay, maybe you did that, but you also

512
00:27:43,240 --> 00:27:46,000
Speaker 4: did this over here to suggests that this wasn't happening

513
00:27:46,240 --> 00:27:48,280
Speaker 4: or you presented it in such a way. And then

514
00:27:48,400 --> 00:27:50,760
Speaker 4: they apply a more holistic approach to the type of

515
00:27:50,800 --> 00:27:53,480
Speaker 4: data that's being collected. I mentioned that one of Google's

516
00:27:53,520 --> 00:27:56,919
Speaker 4: defenses to this was that the data wasn't valuable, It

517
00:27:57,000 --> 00:28:01,040
Speaker 4: even potentially didn't identify you at all. However, today are

518
00:28:01,080 --> 00:28:03,680
Speaker 4: looking at that data and saying it is valuable data.

519
00:28:03,760 --> 00:28:06,639
Speaker 4: They're looking at evidence that Google was profiting from this

520
00:28:06,680 --> 00:28:09,840
Speaker 4: type of data even if it wasn't directly related to

521
00:28:09,880 --> 00:28:12,879
Speaker 4: a person. They're still able to extrapolate trends from how

522
00:28:13,160 --> 00:28:16,119
Speaker 4: a device that sort of navigates them across the internet,

523
00:28:16,119 --> 00:28:18,960
Speaker 4: what sites they see, et cetera. And so we started

524
00:28:19,000 --> 00:28:21,840
Speaker 4: to see them sort of looking at that and saying, Okay, well, yes,

525
00:28:22,000 --> 00:28:24,560
Speaker 4: this one piece of data maybe doesn't identify you, but

526
00:28:24,600 --> 00:28:26,320
Speaker 4: if I put it together with this other piece of

527
00:28:26,400 --> 00:28:28,920
Speaker 4: data to time, the type of device, and so on

528
00:28:28,920 --> 00:28:32,240
Speaker 4: and so forth, we can extrapolate very valuable information about

529
00:28:32,240 --> 00:28:34,960
Speaker 4: how you and people like you use the Internet. And

530
00:28:35,080 --> 00:28:37,879
Speaker 4: not only is that valuable, that is a privacy harm.

531
00:28:37,920 --> 00:28:41,120
Speaker 4: That is still your activity, that's still your data, your

532
00:28:41,160 --> 00:28:43,640
Speaker 4: privacy that's been effective by this conduct.

533
00:28:43,960 --> 00:28:47,600
Speaker 1: What are the biggest takeaways from this case for other

534
00:28:48,120 --> 00:28:49,960
Speaker 1: consumer privacy lawsuits.

535
00:28:50,320 --> 00:28:52,200
Speaker 4: It's a part of a trend. It's really a milestone

536
00:28:52,320 --> 00:28:54,920
Speaker 4: in my mind, to all these sorts of different types.

537
00:28:55,000 --> 00:28:59,080
Speaker 4: There's ongoing litigation around similar data collection practices similar sorts

538
00:28:59,080 --> 00:29:01,320
Speaker 4: of claims under the wire Tap Act, both in California

539
00:29:01,320 --> 00:29:04,080
Speaker 4: and the federal wire Tap Act. We've seen a lot

540
00:29:04,120 --> 00:29:06,480
Speaker 4: of these claims really proliferating over say the last year

541
00:29:06,560 --> 00:29:08,719
Speaker 4: or so. In this case, I think is a milestone

542
00:29:08,800 --> 00:29:11,840
Speaker 4: in that line of cases, largely because the court does

543
00:29:11,880 --> 00:29:15,080
Speaker 4: recognize again that this is valuable data, the plaintiffs do

544
00:29:15,200 --> 00:29:19,160
Speaker 4: have standing. We're seeing consistent cases following the TransUnion Supreme

545
00:29:19,200 --> 00:29:21,560
Speaker 4: Court case a number of years ago, really starting to

546
00:29:21,600 --> 00:29:24,760
Speaker 4: interpret TransUnion, which recognized that there are privacy harms, that

547
00:29:24,920 --> 00:29:29,280
Speaker 4: these are intangible harms sufficiently confer standing. This has solidified

548
00:29:29,320 --> 00:29:31,880
Speaker 4: that notion. On the one hand. And then similarly, what

549
00:29:31,920 --> 00:29:34,560
Speaker 4: we've seen is that where companies engage in some kind

550
00:29:34,600 --> 00:29:38,600
Speaker 4: of conduct that at least is ostensibly in some way deceptive,

551
00:29:38,840 --> 00:29:41,440
Speaker 4: that if plaintiffs can allege some kind of deceptive conduct,

552
00:29:41,680 --> 00:29:43,920
Speaker 4: that they're going to have more success than these sorts

553
00:29:43,920 --> 00:29:46,320
Speaker 4: of claims. And that again that a website that just

554
00:29:46,600 --> 00:29:49,960
Speaker 4: puts up a privacy policy that's not sufficient anymore. And

555
00:29:50,040 --> 00:29:52,120
Speaker 4: often that's sort of what you see, that's how industry

556
00:29:52,160 --> 00:29:55,080
Speaker 4: is operating. That's sort of been the norm for a

557
00:29:55,120 --> 00:29:57,160
Speaker 4: number of years, and again, we're starting to see courts

558
00:29:57,200 --> 00:30:00,560
Speaker 4: recognize that that may not be sufficient. Started to see

559
00:30:00,600 --> 00:30:03,880
Speaker 4: these types of allegations popping up not just since this case,

560
00:30:03,920 --> 00:30:06,560
Speaker 4: but sort of alongside this case, and I think that's

561
00:30:06,600 --> 00:30:09,960
Speaker 4: why it represents a really significant moment. Frankly for these

562
00:30:10,000 --> 00:30:10,720
Speaker 4: types of cases.

563
00:30:11,200 --> 00:30:15,320
Speaker 1: How do you advise tech clients about how transparent they

564
00:30:15,400 --> 00:30:19,240
Speaker 1: have to be about their privacy policies going forward.

565
00:30:19,320 --> 00:30:21,600
Speaker 4: I think that this case really is it's something that

566
00:30:21,600 --> 00:30:24,200
Speaker 4: we can point to to tell clients that, again, historically,

567
00:30:24,240 --> 00:30:25,479
Speaker 4: what they've looked at is, you know, what does our

568
00:30:25,480 --> 00:30:28,520
Speaker 4: privacy policies say, and do we get users to read

569
00:30:28,560 --> 00:30:31,280
Speaker 4: the privacy policy or at least acknowledge that they've seen

570
00:30:31,320 --> 00:30:33,400
Speaker 4: it or had the ability to read it. Whereas today

571
00:30:33,480 --> 00:30:35,920
Speaker 4: I think what we're seeing is that maybe that's not sufficient.

572
00:30:35,920 --> 00:30:37,600
Speaker 4: That what we need to do is put a notice

573
00:30:37,600 --> 00:30:40,000
Speaker 4: that pops up like we've seen you've probably seen more

574
00:30:40,040 --> 00:30:42,280
Speaker 4: on the web these days, the little pop up banners

575
00:30:42,640 --> 00:30:45,240
Speaker 4: and things like that, telling people that their data is

576
00:30:45,280 --> 00:30:49,560
Speaker 4: being collected for say, social media or for advertising purposes,

577
00:30:49,600 --> 00:30:52,120
Speaker 4: and just letting people know immediately upon visiting a site

578
00:30:52,240 --> 00:30:54,880
Speaker 4: that this is happening, and then giving users a choice

579
00:30:54,960 --> 00:30:57,560
Speaker 4: around that. So I think what we've been looking at

580
00:30:57,680 --> 00:30:59,320
Speaker 4: kind of in light of a lot of these cases,

581
00:30:59,600 --> 00:31:01,440
Speaker 4: is it by and clients, you know, anybody with the

582
00:31:01,440 --> 00:31:05,080
Speaker 4: website frankly that engages in advertising or uses social media

583
00:31:05,520 --> 00:31:08,560
Speaker 4: type integrations to be more transparent, to give users that

584
00:31:08,680 --> 00:31:11,880
Speaker 4: sort of upfront notice about what's actually happening on the site,

585
00:31:11,920 --> 00:31:14,640
Speaker 4: what data is being collected in the background, and then

586
00:31:14,640 --> 00:31:16,600
Speaker 4: giving them some kind of choice like giving them the

587
00:31:16,640 --> 00:31:19,600
Speaker 4: ability to click that reject all button and say, you

588
00:31:19,600 --> 00:31:22,120
Speaker 4: know that they don't want to be tracked by these services.

589
00:31:23,160 --> 00:31:26,560
Speaker 1: The class action sought at least five billion dollars. Do

590
00:31:26,600 --> 00:31:29,800
Speaker 1: we know any of the terms of the settlement.

591
00:31:30,160 --> 00:31:32,520
Speaker 4: As of today, we don't know the terms of the settlement.

592
00:31:32,920 --> 00:31:37,000
Speaker 4: It's all still confidential at this point. That five billion

593
00:31:37,040 --> 00:31:40,960
Speaker 4: dollar number was that I think that came out of

594
00:31:41,000 --> 00:31:44,480
Speaker 4: the assessed damages for the class and so the class

595
00:31:44,640 --> 00:31:48,480
Speaker 4: was essentially everyone who had used incognito mode from I

596
00:31:48,520 --> 00:31:51,920
Speaker 4: believe it was June first, twenty sixteen, until the case

597
00:31:51,960 --> 00:31:54,880
Speaker 4: was filed in twenty twenty, and so I think they

598
00:31:54,880 --> 00:31:57,040
Speaker 4: were ledging somewhere between one hundred and one thousand dollars

599
00:31:57,120 --> 00:32:01,640
Speaker 4: in damages per affected class member, and so this number

600
00:32:01,720 --> 00:32:06,480
Speaker 4: came about based on sort of the claiman's assessment and

601
00:32:06,560 --> 00:32:09,960
Speaker 4: some evidence that they had uncovered around what Google was

602
00:32:10,000 --> 00:32:13,120
Speaker 4: selling browsing history data for and how they were monetizing

603
00:32:13,160 --> 00:32:15,640
Speaker 4: it as part of their business. But the actual terms

604
00:32:15,680 --> 00:32:17,640
Speaker 4: of the settlement we don't know, And.

605
00:32:17,720 --> 00:32:20,760
Speaker 1: I suspect that those of us who turned on the

606
00:32:20,800 --> 00:32:24,040
Speaker 1: incognito mode in that time period are going to get

607
00:32:24,040 --> 00:32:28,600
Speaker 1: a little card saying talking about the settlement and some

608
00:32:28,720 --> 00:32:32,200
Speaker 1: kind of pittance. That's what these class action lawsuits usually

609
00:32:32,280 --> 00:32:34,959
Speaker 1: end up being for consumers, that is correct.

610
00:32:34,960 --> 00:32:38,280
Speaker 4: I would be very interested to see how they find

611
00:32:38,280 --> 00:32:39,640
Speaker 4: out how to give you the card or how to

612
00:32:39,680 --> 00:32:41,680
Speaker 4: send it to you and who was actually inspected members.

613
00:32:41,680 --> 00:32:43,520
Speaker 4: So I think it'll be very interesting to see how

614
00:32:43,560 --> 00:32:45,600
Speaker 4: they actually do links that up.

615
00:32:46,040 --> 00:32:47,760
Speaker 1: Any final thoughts, The.

616
00:32:47,680 --> 00:32:50,040
Speaker 4: Big takeaway for me is again that you know, we

617
00:32:50,080 --> 00:32:52,800
Speaker 4: see these trends of you know, data collection around people's

618
00:32:52,800 --> 00:32:55,560
Speaker 4: browsing behavior and all of advertising and all of the

619
00:32:55,600 --> 00:32:58,400
Speaker 4: analysis that goes on about how people use the Internet,

620
00:32:58,600 --> 00:33:01,480
Speaker 4: how they they visit, all of this stuff that's been

621
00:33:01,480 --> 00:33:03,560
Speaker 4: happening in the background since I thought as long as

622
00:33:03,560 --> 00:33:07,320
Speaker 4: the internets existed. It's really becoming somewhat of a sensitive thing,

623
00:33:07,360 --> 00:33:11,120
Speaker 4: and the courts are responsive to that. And we're seeing

624
00:33:11,120 --> 00:33:14,600
Speaker 4: consumers really starting to take the initiative here, and you know,

625
00:33:14,640 --> 00:33:16,440
Speaker 4: clients just need to be aware of that. And you know,

626
00:33:16,480 --> 00:33:18,440
Speaker 4: anybody is sort of with a website sort of needs

627
00:33:18,440 --> 00:33:21,360
Speaker 4: to be aware of this activity and these potential claims.

628
00:33:21,560 --> 00:33:25,560
Speaker 1: This lawsuit may make people think twice before clicking on

629
00:33:25,600 --> 00:33:30,480
Speaker 1: that incognito mode. Thanks so much, Austin. That's Austin Chambers,

630
00:33:30,720 --> 00:33:33,920
Speaker 1: a partner at Dorsey and Whitney. And that's it for

631
00:33:33,960 --> 00:33:36,600
Speaker 1: this edition of the Bloomberg Law Show. Remember you can

632
00:33:36,600 --> 00:33:39,800
Speaker 1: always get the latest legal news on our Bloomberg Law Podcast.

633
00:33:40,120 --> 00:33:43,160
Speaker 1: You can find them on Apple Podcasts, Spotify, and at

634
00:33:43,320 --> 00:33:48,360
Speaker 1: www dot Bloomberg dot com, slash podcast, Slash Law, and

635
00:33:48,400 --> 00:33:51,480
Speaker 1: remember to tune into The Bloomberg Law Show every weeknight

636
00:33:51,560 --> 00:33:55,000
Speaker 1: at ten pm Wall Street Time. I'm June Grosso and

637
00:33:55,080 --> 00:33:56,520
Speaker 1: you're listening to Bloomberg