• by Wendy Davis  @wendyndavis, March 14, 2023

Android users are urging a federal appellate court to revive a lawsuit claiming that Google misappropriated their bandwidth by allegedly collecting app-related data.

U.S. District Court Judge Virginia DeMarchi in the Northern District of California dismissed the lawsuit at an early stage last year, essentially ruling that bandwidth isn't the kind of property that can be misappropriated.

The Android users are now asking the 9th Circuit Court of Appeals to reverse that decision, arguing that bandwidth -- like water or electricity -- can be “hijacked” by third parties.

The battle stems from a lawsuit brought in November of 2020 by Joseph Taylor and other Android users, who alleged in a class-action complaint that Google misappropriated their cellular data by collecting app-related information when the apps weren't in use.

The complaint drew on Vanderbilt University professor Douglas Schmidt's 2018 study about “passive” data collection by Google. That study reported that idle Android devices sent data back to Google hundreds of times each day.

Google sought a dismissal before trial. Among other arguments, the company said Android users don't have traditional property rights in cell phone data allowances.

DeMarchi agreed with Google, ruling that bandwidth isn't comparable to water or electricity.

“A utility customer may plausibly be said to consume a discrete quantum of water, gas, or electricity in a manner that makes that specific quantum of water, gas, or electricity unavailable to any other customer,” she wrote. “The allegations of the complaint do not plausibly establish that use of a cellular data network involves the exclusive consumption of a quantum of data.”

She also said the allegations in the complaint, even if proven true, wouldn't establish that Taylor and the others were injured by any data transfers.

“Nowhere does the [complaint] allege that any plaintiff had to pay more money for data or suffered a degradation in service because of Google’s alleged passive data transfers,” she wrote.

Taylor and the others are now arguing to the 9th Circuit that they should have been allowed to attempt to prove their case.

“The gravamen of plaintiffs’ complaint is that Google secretly hijacked their cellular data, without their consent, for Google’s own benefit,” class counsel writes in papers filed last week with the 9th Circuit. “Those who secretly hijack services from others should fully expect that they will be forced to pay for those services if and when they are caught.”

The complaint “plainly alleges that cellular data is bought and sold, that it has significant economic value, and that consumers have a right to exclusively control the use of the cellular data that they purchase from wireless carriers,” the consumers' attorneys argue.

Google is expected to respond by early May.