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5/9/2011
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Google Sued Over Tracking Code In Android Apps

The lawsuit accuses Google, Flurry, and Mobclix of gathering advertising and app usage metrics and giving that data to mobile advertising companies.

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Google and mobile advertising metrics companies Flurry and Mobclix were sued last week in San Jose, Calif., for allegedly harvesting location data and device identification numbers, and for "introducing a computer contaminant," code that reports metrics.

The lawsuit, filed on behalf of plaintiff Juliann King, claims the companies violated federal computer fraud law and California laws governing computer crime and business conduct, in addition to breaching an implied contract.

The complaint asserts that Android users have downloaded apps that include embedded information-harvesting code--APIs for gathering advertising and app usage metrics--that sends detailed information about users, including their locations and unique mobile identifiers, to mobile advertising companies. This information, the complaint claims, is then used to track, profile, and personally identify users.

Past news reports about Android app security appear to have led to the lawsuit. The complaint cites findings by corporate and academic security researchers that reveal, for example, that half of 30 Android apps tested "transmitted the user's physical location and, in some cases, phone number, to defendants, without disclosing such transfer to the user, for purposes unrelated to the advertised purpose of the app and, in most cases, in plain text."

Google declined to comment on pending litigation. The company has defended its handling of location sharing on Android devices, noting that Android location sharing is opt-in and that Google provides "notice and control over the collection, sharing, and use of location."

Flurry, and Mobclix did not immediately respond to requests for comment.

The complaint arrives amid growing unease about data collection and privacy. Last month, Apple was forced to defend its handling of location data after researchers raised questions about the presence of a Wi-Fi hotspot database stored on iPhones. Apple has since released a code update to address the issue.

Lawmakers have been mulling limits on online data collection for months and on Friday, Senator Jay Rockefeller (D-W.Va.) said he planned to introduce Do-Not-Track legislation, which requires companies to honor consumer choice when consumers say they do not want their online activities tracked.

While some of Google's competitors like Microsoft have voiced support for a Do-Not-Track law, Google itself has not. Google relies on data to monetize the free services it provides and has consistently defended its stewardship of user data and the utility of anonymized aggregated data to improve its services.

Venkat Balasubramani, an attorney with Seattle-based law firm Focal PLLC and a contributor to Eric Goldman's Technology & Marketing Law blog, characterized the suit as a rehash of tracking cookie lawsuits in a mobile context. "I think this is just seizing on the public reports and zeitgeist," he said in a phone interview.

The lawsuit's assertion that the inclusion of mobile metrics code in an app constitutes trespass isn't likely to get very far, he suggested, noting that past claims that spam is equivalent to trespass because it slows machine performance have been shot down. The lawsuit's characterization of the apps as engaging in "unauthorized access" in violation of federal and state laws face similar challenges, he said, noting however that courts have shown willingness to treat access that exceeds authorization as a violation of the Computer Fraud and Abuse Act in some contexts.

Balasubramani explained in an email that such suits typically have a hard time in the absence of some showing of specific harm. He allowed that one outcome of this and similar cases might be stronger efforts by companies like Flurry and Mobclix to elicit promises from developers to use advertising reporting code in an acceptable manner. But he also observed that such companies usually have explicit and lengthy terms of use policies that require developers not to misuse the power of code.

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