Hibnick v. Google Inc.

Filing 121

OBJECTIONS to re 120 Proposed Order by Electronic Privacy Information Center. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3, # 4 Appendix 4, # 5 Appendix 5, # 6 Appendix 6, # 7 Appendix 7, # 8 Appendix 8, # 9 Appendix 9, # 10 Appendix 10, # 11Appendix 12, # 12 Appendix 13, # 13 Appendix 11)(Friedman, Philip) (Filed on 3/30/2011) Modified on 4/1/2011 (cv, COURT STAFF).

MARC ROTENBERG1 (to be admitted pro hac vice)
[e-mail]
JOHN VERDI2
GINGER MCCALL3
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009
[phone] (telephone)
[phone] (facsimile)
PHILIP S. FRIEDMAN (California Bar No. 131521)
[e-mail]
Friedman Law Offices, PLLC
2401 Pennsylvania Ave., NW
Suite 410
Washington, DC 20037
Telephone: [phone]
Attorneys for the Cy Pres Applicant
the Electronic Privacy Information Center
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
IN RE GOOGLE BUZZ USER
PRIVACY LITIGATION

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This Pleading Relates To:
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ALL CASES
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____________________________)

Case No. 5:10-CV-00672-JW
CY PRES APPLICANTS’ OBJECTION
TO CLASS COUNSEL’S PROPOSED
CY PRES DISTRIBUTION

Pursuant to the Court’s February 16, 2011 Order (Dkt. No. 117), the Electronic
Privacy Information Center (“EPIC”) respectfully files this objection to Class Counsel’s
March 25, 2011 submission (Dkt. No. 119) on behalf of itself, the Center for Digital

1
Mr. Rotenberg is barred in the District of Columbia, the Commonwealth of
Massachusetts, the U.S. Supreme Court, and several federal Circuits Courts.
2
Mr. Verdi is barred in the District of Columbia and the State of New Jersey.
3
Ms. McCall is barred in the State of Pennsylvania.
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Democracy, Consumer Action, Patient Privacy Rights, Privacy Activism, the Privacy
Rights Clearinghouse, U.S. PIRG, and the World Privacy Forum.
All of the objecting organizations have well-established programs focused on
Internet privacy. All of the objecting organizations submitted timely applications to the
Rose Foundation for the “Google Buzz Privacy Settlement: Cy Pres Fund Application
Process” as per the Rose request received on February 28, 2011. All of the objecting
organizations have previously received cy pres awards in similar matters concerning
Internet privacy. However, none of the objecting organizations were designated to
receive funds in the submission of Class Counsel presented to the Court. Class Counsel
proposed instead to distribute the majority of cy pres funds to organizations that are
currently paid by Google to lobby for or to consult for the company, which is the
defendant in this matter. This is contrary to the interests of the Class. It is the objecting
organizations and not the organizations proposed by Class Counsel that would most
directly represent the interests of the Class.
For the reasons set forth below, EPIC and the objecting organizations respectfully
request that the Court review the applications of the undersigned organizations as
submitted, consider additional relevant factors set forth below, and revise the cy pres
distribution as referenced in Appendix 1 so as to protect the interests of the Class. See
Appendices 1-2.
Standard Governing Cy Pres Distributions
A court must carefully consider settling parties’ choice of a cy pres recipient.
Although the overarching standard by which a judge should review a settlement is
whether the settlement is fair, reasonable, and adequate, “where cy pres is considered, it

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will be rejected when the proposed distribution fails to provide the ‘next best’
distribution.” see Molski v. Gleich, 318 F.3d 937, 953 (9th Cir. 2003) overruled on other
grounds by Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010); Six Mexican
Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1308 (9th Cir. 1990); see also American
Law Institute, Principles of the Law of Aggregate Litigation, § 3.07 (2010) (“The court,
when feasible, should require the parties to identify a recipient whose interests reasonably
approximate those being pursued by the class.”). Moreover, cy pres funds “should be
distributed for a purpose as near as possible to the legitimate objectives underlying the
lawsuit, the interests of class members, and the interests of those similarly situated. In re
Airline Ticket Comm'n Antitrust Litigation, 307 F.3d 679, 682 (8th Cir. 2002).
The Objecting Organizations and their Applications
The Electronic Privacy Information Center (“EPIC”) was established in 1994 to
focus public attention on emerging civil liberties issues and to protect privacy, the First
Amendment, and constitutional values. For more than sixteen years, EPIC has remained
the leading advocate in the United States for Internet users’ privacy rights. EPIC
promotes Internet users’ privacy rights before Congress, federal agencies, and the courts.
EPIC educates consumers through EPIC’s websites, print publications, and public
education events. EPIC pursues a well-established, broad-based, widely regarded, and
effective program that protects privacy, educates Internet users, and directly advances the
interests of Class members. EPIC requested $1,750,000 from the Settlement Fund for
nine projects that would directly benefit the Class through established Internet privacy
education and policy programs, including ongoing support for EPIC.ORG and
PRIVACY.ORG, two of the most popular Internet privacy web sites in the world. See

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Appendix 3. EPIC received $200 in employee matching contributions from Google in
2010 but otherwise receives no support from the corporation. Class Counsel excluded
EPIC from the proposed cy pres distribution.
The Center for Digital Democracy (“CDD”) was established in 2001. CDD is one
of the leading consumer privacy organizations in the United States. CDD has been at the
forefront of research, public education, and advocacy on protecting privacy in the digital
age. CDD requested $450,000 from the Settlement Fund for three projects: “Protecting
Consumer Privacy in Sensitive Financial Transactions Online,” “Protecting Consumer
Privacy in the Online Pharmaceutical Marketplace,” and “Protecting the Privacy of the
Internet’s Most Vulnerable Users.” See Appendix 4. The CDD does not take money from
Google. Class Counsel excluded CDD from the proposed cy pres distribution.
Consumer Action (“CA”) has been a champion of underrepresented consumers
nationwide since 1971. CA has included Internet privacy as one of its five core issues
since 2002. CA requested $1,250,000 from the Settlement Fund to support a three-year
Internet privacy project including: consumer education publications, training of CBO
staff, website enhancements, a mini-grants program, and increased policy work. See
Appendix 5. The CDD does not take money from Google. Class Counsel excluded CDD
from the proposed cy pres distribution.
Patient Privacy Rights Foundation (“PPR”) was established in 2004. PPR works
to empower individuals and prevent widespread discrimination based on health
information using a grassroots, community organizing approach. Health information is
the most sensitive information on the Internet and PPR is the only organization dedicated
to educating the public about Internet health privacy issues. PPR educates consumers,

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champions smart policies, and exposes and holds industry and the government
accountable. PPR requested $643,000 from the Settlement Fund for the first ever public
forum on Internet health privacy issues, “Summit on the Future of Health Privacy,” to
expand its Public Outreach Program, enhance other ongoing programs, and to create and
oversee a Privacy Speakers’ Bureau. See Appendix 6. PPR does not take money from
Google. Class Counsel excluded PPR from the proposed cy pres distribution.
Privacy Activism (“PA”), incorporated in 2001, has focused primarily on online
consumer privacy issues, raising public understanding of complex questions about
privacy, and helping people make informed choices. PA requested $153,000 from the
Settlement Fund for development of mobile applications, including “Privacy Tips” and
the “Privacy App.” See Appendix 7. PA does not take money from Google. Class
Counsel excluded PA from the proposed cy pres distribution.
The Privacy Rights Clearinghouse (“PRC”) is a nonprofit consumer education and
advocacy organization, established in 1992, and based in San Diego, California. It has a
national presence. The PRC requested $265,000 from the Settlement Fund for continued
support for online privacy programs, covering such topics as social networking, security
breaches, employee monitoring, anti-spam resources, children’s online safety, children’s
online privacy, online shopping, online job scams, smartphones, and online privacy for
nonprofits. See Appendix 8. The PRC does not take money from Google. Class Counsel
excluded PRC from the proposed cy pres distribution.
U.S. PIRG (“PIRG”), the federation of state Public Interest Research Groups,
stands up to powerful special interests on behalf of the American public, working to win
concrete results for Americans’ health and well-being. With a strong network of

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researchers, advocates, organizers and students in state capitols across the country, PIRG
takes on the special interests on issues, including consumer privacy rights, where these
interests stand in the way of reform and progress. PIRG requested $1,000,000 from the
Settlement Fund for a two-year grant to educate consumers about safeguarding their
personal information on the Internet and to conduct research into rapidly evolving
Internet privacy issues. See Appendix 9. PIRG does not take money from Google. Class
Counsel excluded PIRG from the proposed cy pres distribution.
The World Privacy Forum (“WPF”), established in 2003, is a non-profit, nonpartisan 501 (c)(3) public interest research and consumer education group focused on
conducting in-depth research and consumer education in the area of privacy, technology,
and the Internet. WPF’s mission is to provide substantive research and consumer
information that documents and analyzes critically important privacy issues and to
provide consumer information and educational support in the area of privacy. The WPF
requested $450,000 to support core operational program of Consumer Internet Privacy
education and assistance by offering phone, email, and web assistance to the Class,
conducting policy work that will help improve privacy choices for the Class, and
supporting research and consumer guides specifically to educate and assist the Class with
resolving Internet privacy issues and challenges. See Appendix 10. The WPF does not
take money from Google. Class Counsel excluded WPF from the proposed cy pres
distribution.
EPIC Previously Filed the Complaint before the Federal Trade Commission on
which Class Counsel has relied
On February 16, 2010, EPIC filed a complaint with the FTC highlighting several
aspects of the Google Buzz service that threatened Gmail users’ privacy. Appendix 11;

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see also Appendix 12. The complaint focused on the unfair and deceptive trade practices
of Google with respect to Google’s transformation of an email service to a social
networking service without offering Gmail users meaningful control over their
information or opt-in consent. The complaint argued that Google’s change in business
practices and service terms violated user privacy expectations, diminished user privacy,
contradicted Google’s own privacy policy, and may have also violated federal wiretap
laws.
On March 30, 2011, the FTC announced settlement of its charges concerning
Google Buzz. Federal Trade Commission, FTC Charges Deceptive Privacy Practices in
Google's Rollout of Its Buzz Social Network, http://ftc.gov/opa/2011/03/google.shtm
attached at Appendix 13. The Commission found that Google “used deceptive tactics and
violated its own privacy promises to consumers when it launched [Buzz]” and stated
EPIC’s Complaint provided the basis for the Commission’s investigation. Id. (“Google’s
data practices in connection with its launch of Google Buzz were the subject of a
complaint filed with the FTC by the Electronic Privacy Information Center shortly after
the service was launched.”).
There has never been, nor is there likely to be, a cy pres applicant whose interests
are more aligned with those of the Class member or who is more deserving of an
allocation from a settlement fund.
The organizations excluded from the Submission of Class Counsel have previously
worked together to effectively protect the interests of Internet users
The organizations excluded from the Submission of Class Counsel have
frequently cooperated to protect privacy rights of Internet users. For example, in June
2008, EPIC, WPF, PRC, and others sent a letter to Google demanding that the company

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comply with California law and place a prominent link to its privacy policy on its
homepage. EPIC, WPF, and PRC were successful in this effort, and, within weeks, a
“privacy” link appeared on Google’s homepage.
In November 2008, EPIC and PPR sent a letter to Google CEO Eric Schmidt
pointing out the privacy implications of Google’s Flu Trends web tool. EPIC and PPR
pointed out the sensitivity of medical term internet searches and the inadequacies of data
anonymization.
The organizations excluded from the Submission of Class Counsel have been
routinely selected in other Cy Pres Settlements
As a result of Mirfasihi v. Fleet Mortgage Corp., 551 F.3d 682 (7th Cir. 2008), In
re ATI Tech. HDCP Litigation, and In re iPod nano Cases, No. 06-1754 (N.D. Cal. filed
Apr. 18, 2006), EPIC has received a substantial cy pres awards in support of its work on
consumer privacy. CDD and PIRG also received substantial cy pres awards in the iPod
nano litigation.
The organizations excluded from the Submission of Class Counsel have been
acknowledged by other federal courts for their defense of Internet user privacy
In Mirfasihi v. Fleet Mortgage Corp., a consumer privacy class action case, Judge
Lefkow acknowledged EPIC as “a public interest research center devoted to privacy
education and protection” and explicitly approved an award to the organization. Mirfasihi
v. Fleet Mortgage Corp., No. 01 C 722, 2007 WL 2066503 at *2 (N.D. Ill. July 17, 2007)
aff'd, 551 F.3d 682 (7th Cir. 2008).
In the recent decision regarding Google Books Settlement, Judge Denny Chin
noted EPIC’s work on behalf in Internet users. The Authors Guild, Inc., et al. v. Google
Inc., Case No. 05 CV 8136, slip op. at 13 (S.D.N.Y. 2009). In his opinion, Judge Chin

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stated that “the Electronic Privacy Information Center… contend[s] that the ASA raises
significant privacy issues, as the digitization of books would enable Google to amass a
huge collection of information, including private information about identifiable users,
without providing adequate protections regarding the use of such information.” Judge
Chin concluded that Google should incorporate “certain additional privacy protections.”
Slip op. at 39-40.
The Class Counsel Submission
The majority of funds in the cy pres allocation set forth in the submission of Class
Counsel would be allocated to organizations that currently receive support from Google
for lobbying, consulting, or similar services. Six of the twelve groups designated by Class
counsel were funded by Google last year. Plaintiffs’ reply re Motion to Approve Consent
Judgment, Ex. B (Dkt. No. 119) at 4-6, 10. Class counsel proposes that these Googlefunded groups receive $3,315,000 of the cy pres funds in this matter, accounting for 54%
of the total distribution. Id; Dkt. No. 119 at 1.
Virtually none of the organizations receiving funds in the proposed cy pres
settlement showed any interest in the circumstances of Class members prior to the
announcement of the cy pres settlement in this matter.
Conclusion
The interests of Class members would best be served by supporting those
organizations that are willing to stand up for the interests of Class members. EPIC has a
particularly strong claim that its successful complaint to the Federal Trade Commission
regarding the Google Buzz matter has done far more to advance the interests of the Class
than has any other party. Class Counsel should not be rewarded for structuring a cy pres

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settlement that encourages organizations to stand by quietly while others do the actual
work of safeguarding Internet privacy.

Respectfully submitted,
________/s/ Philip S. Friedman ________
PHILIP S. FRIEDMAN
(California Bar No. 131521)
[e-mail]
Friedman Law Offices, PLLC
2401 Pennsylvania Avenue, NW
Suite 410
Washington, DC 20037
Telephone: [phone]
___________/s/ Marc Rotenberg________
MARC ROTENBERG4 (to be admitted pro
hac vice)
JOHN VERDI5
GINGER MCCALL6
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009
[phone] (telephone)
[phone] (facsimile)
[e-mail] (email)
Attorneys for the Cy Pres Applicant
the Electronic Privacy Information Center
Dated: March 30, 2011

4
Mr. Rotenberg is barred in the District of Columbia, the Commonwealth of
Massachusetts, the U.S. Supreme Court, and several federal Circuits Courts.
5
Mr. Verdi is barred in the District of Columbia and the State of New Jersey.
6
Ms. McCall is barred in the State of Pennsylvania.
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