At issue in the case is the Web and App Activity toggle in Android device’s settings. Turning the toggle off prevents future web and app activity being saved to a user’s Google account.

The class plaintiffs, a suit first filed in 2020, claim that Google collected their personalized data even though they turned the toggle off. They claim the toggle gives users the false impression that they can “opt out” of sharing all data with Google and third-party developers, and accused Google of invasion of privacy.

Santacana said that none of the data that Google collected could be tied back to a user and that the defendants had failed to include a single example of the data being tracked back to a user, being used for personalized advertisements or being used to build marketing profiles.

Seeborg, a Barack Obama appointee, told Santacana that he thought the language in Google’s privacy policy could possibly mislead a reasonable consumer into believing that toggling the function off stops collection of all data.

Santacana replied that it’s not Google’s fault if a user doesn’t interpret the policies correctly.

David Boies, counsel for the class plaintiffs, told Seeborg that he didn’t believe that Google doesn’t collect personal information, and that even the non-personal information could identify a person’s mobile device and be linked to a specific individual.

Boies read Seeborg copies of Google employees’ internal emails, in which multiple employees expressed that they felt the privacy policy was fooling users into thinking that personal information wasn’t being collected. In the emails, the Google employees also said they were collecting and using personal information.

Seeborg took the matter under submission.