By Howard Fischer
Capitol Media Services
PHOENIX -- A member of Congress and more than two dozen academic researchers are urging a judge to order public release of documents about how Google tracks users.
Republican Congressman Andy Biggs told Maricopa County Superior Court Judge Timothy Thomason that the documents at issue relate directly to debates going on in Washington.
"My colleagues in Congress and I have previously expressed concerns over Google's concerning invasions of privacy,'' Biggs wrote in a letter to the judge.
"All branches of our government exist to protect the fundamental liberties of our citizens -- especially their privacy,'' he said. "The public has a strong interest in transparency and learning the full extent to which Google and other tech companies may be spying and surreptitiously collecting information from Arizonans, including constituents whom I represent.''
The letter from the scholars stresses a different reason for their interest in public release of documents obtained during an investigation of Google by Attorney General Mark Brnovich.
"The issue of user location tracking by Google and other tech companies is of urgent public importance, and there is presently a robust public debate on this topic,'' says the letter signed by professors, lecturers and other faculty at institutions including Harvard, New York University, Yale, Cornell and Massachusetts Institute of Technology.
"Given this context, it is vital that the court seal only those parts of the complaint and exhibits that actually contain trade secrets or other information that are legitimately deemed confidential,'' they wrote. And they specifically asked Thomason to reject a bid by Google to delay any decision about what to make public.
Whether any of that makes any difference in what the public sees -- and when -- is speculative at best. In fact Thomason, on getting both letters, let the attorneys for both sides know that he briefly read a portion before realizing each of their natures.
"The court has disregarded this letter and will not consider it further,'' Thomason wrote in response to both.
But the judge will have to consider arguments filed Friday by Assistant Attorney General Beau Roysden asking Thomason to ignore a bid by Google to keep the documents secret or, at the very least, delay a decision while the company tries to have the entire lawsuit thrown out.
"Google's requested delay would unconstitutionally impair the right of public access that is guaranteed by both the First Amendment and the Arizona Constitution,'' he told the judge.
The issue involves a claim by Attorney General Mark Brnovich that Google's practices of tracking users through software and apps without clear consent of the users violates the Arizona Consumer Fraud Act.
Google, for its part, claims that whatever the company was doing does not fit within the definitions and scope of that Arizona law. More immediately, the company said there is no reason to release the information, especially if Thomason agrees and tosses out the lawsuit.
Roysden is not conceding that the complaint is flawed. But he told the judge that the question of whether the lawsuit succeeds or is thrown out really doesn't matter.
He pointed out that the records at issue -- the records that Google provided to the attorney general's office under what's called a "civil investigatory demand'' -- actually are part of the complaint filed with the court. They are directly addressed in the actual charges brought by Brnovich and attached as separate exhibits.
But only part of the complaint and exhibits are publicly available, with the attorney general's office having agreed to seal them until Thomason got to take a look and hear Google's arguments.
So far, Roysden said, the company has presented no good reason for keeping most of these sealed.
More to the point, he argues that it's really too late for Google to do anything about it as it is now part of the court record.
"The public right of access has already attached to the complaint (including exhibits),'' Roysden said. "Win, lose, or draw on the motion to dismiss, Google must still comply with the requirements of (court rules), and the court must still evaluate what portions (if any) of the existing complaint (including its exhibits) warrant sealing.''
Roysden cited a federal appellate court ruling from earlier this year which concluded that a filed complaint is an official judicial document or record.
"Absent a showing that there is a substantial interest in retaining the private nature of a judicial record, once documents have been filed in a judicial proceeding, a presumption arises that the public has the right to know the information they contain,'' he said. And Roysden said it's legally irrelevant whether the case is still pending, there has been a ruling or the matter was settled out of court.
"The public still has a right to know that the filing of the complaint in our courts influenced the settlement of the dispute,'' he wrote.
Biggs, in writing to Thomason, stressed that he was not commenting on the allegations made against Google by Brnovich. But the congressman said what he has read "have detailed Google's troubling potential violations of Arizonans' and Americans' privacy.''
"Any information that is not considered a trade secret or proprietary to Google should be made available for the public,'' Biggs wrote.