`
` GEORGE A. ZELCS
`MARC A. WALLENSTEIN
`ROBERT E. LITAN
`RYAN Z. CORTAZAR
`KOREIN TILLERY LLC
`205 North Michigan Avenue
`Suite 1950
`Chicago, Illinois 60601
`Telephone: (312) 641-9750
`Facsimile: (312) 641-9751
`
`MICHAEL E. KLENOV (277028)
`CAROL O’KEEFE
`KOREIN TILLERY LLC
`505 North Seventh Street
`Suite 3600
`St. Louis, Missouri 63101-1625
`Telephone: (314) 241-4844
`Facsimile: (314) 241-3525
`
`ANN RAVEL (62139)
` aravel@mcmanislaw.com
`McMANIS FAULKNER
`a Professional Corporation
`50 West San Fernando Street, 10th Floor
`San Jose, California 95113
`Telephone:
`(408) 279-8700
`Facsimile:
`(408) 279-3244
`
`
`GLEN E. SUMMERS (176402)
` glen.summers@bartlitbeck.com
`KARMA M. GIULIANELLI (184175)
` karma.giulanelli@bartlitbeck.com
`ALISON G. WHEELER (180748)
` alison.wheeler@bartlitbeck.com
`BARTLIT BECK LLP
`1801 Wewatta Street, Suite 1200
`Denver, Colorado 80202
`Telephone:
`(303) 592-3100
`Facsimile:
`(303) 592-3140
`
`
`Attorneys for Plaintiffs,
`Joseph Taylor, Edward Mlakar, Mick
`Cleary, Eugene Alvis, and Jennifer Nelson
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
`
`JOSEPH TAYLOR, EDWARD MLAKAR,
`MICK CLEARY, EUGENE ALVIS, and
`JENNIFER NELSON individually and on
`behalf of all others similarly situated,
`
`Plaintiffs,
`
`vs.
`GOOGLE LLC,
`Defendant.
`
`
`
` Case No.: 5:20-CV-07956-VKD
`
`
`FIRST AMENDED
`CLASS ACTION COMPLAINT
`
`
`
`JURY TRIAL DEMANDED
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`INTRODUCTION
`1.
`Defendant Google LLC (“Google”) designed the Android operating system to
`collect vast amounts of information about its users, which Google uses to generate billions of
`dollars in profit annually by selling targeted digital advertisements and improving products like
`Google Maps. There are privacy implications for an operating system specifically designed to
`surveil mobile device users in order to refine Google’s targeted advertising business. But there is
`also an unlawful free-riding problem because Google collects this information by consuming the
`cellular data that its Android users purchase from their cellular providers every month. Google
`effectively forces these users to subsidize its surveillance by secretly programming Android
`devices to constantly transmit user information to Google in real time, thus appropriating the
`valuable cellular data users have purchased. Google does this, in large measure, for its own
`financial benefit, and without informing users or seeking their consent.
`2.
`This case involves the application of long-standing common law principles to seek
`redress for Google’s secret appropriation of Android users’ cellular data. Pursuing separate claims
`under both quantum meruit and conversion, Plaintiffs seek to represent a nationwide class of
`consumers (excluding California residents) who own Android mobile devices that secretly use
`their costly cellular data to enable Google’s surveillance activities.
`3.
`Consumers pay mobile carriers for cellular data, and they consume that data
`through their mobile devices. Cellular data is property subject to conversion. But even if cellular
`data were a service rather than property, Google’s misappropriation of that service gives rise to a
`quantum meruit claim—a claim that does not depend on cellular data being property.
`4.
`Cellular data is property subject to conversion because, just like electricity or water,
`cellular data is capable of exclusive possession. Just like electricity or water passing through a
`meter attached to a home, every singly byte of cellular data transmitted by a wireless device is
`metered by the carrier. Just like the use of electricity or water, the amount of data transmitted by a
`wireless device has ramifications for the consumer, who can be charged for the additional use or
`suffer restrictions on further use. And just as electricity and water are provided by utilities, it
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`makes no difference that cellular data is transmitted by a wireless carrier. Just like electricity
`delivered through a wire into a home is property, and just as the water passing through a pipe into
`a home is property, so too is the cellular data transported over a wireless carrier’s network to and
`from a user’s cellular device.
`5.
`Even if cellular data is not property subject to conversion, and is instead a
`contractual right of access to a service, it is still a valuable right that Google has misappropriated,
`and the misappropriation of a service is precisely the sort of wrong that quantum meruit is meant
`to redress. The quantum meruit claim pleaded in this Amended Complaint is not a common
`count derivative of the conversion claim. It is a separate cause of action, with a separate theory
`of recovery that the consumer class has a right to pursue regardless of whether cellular data is or
`is not property. The quantum meruit claim does not rise and fall with the conversion claim—quite
`the opposite. Either cellular data is property subject to conversion, or it is a contractual right of
`access to a service subject to quantum meruit. It may even be both—but it must at least be one or
`the other.
`6.
`Much of the information-gathering by Google takes place without any action at all
`by Android device owners. While Plaintiffs’ Android devices are in their purses and pockets, and
`even while sitting seemingly idle on Plaintiffs’ nightstands as they sleep, Google’s Android
`operating system secretly appropriates cellular data paid for by Plaintiffs to perform “passive”
`information transfers which are not initiated by any action of the user and are performed without
`their knowledge. The transmission of this data to and from Google is not time-sensitive and could
`be delayed until Plaintiffs are on a Wi-Fi network, to avoid consuming Plaintiffs’ cellular data.
`However, Google deliberately designed and coded its Android operating system and Google
`applications to indiscriminately consume Plaintiffs’ cellular data and passively transfer
`information at all hours of the day—even after Plaintiffs move Google apps to the background,
`close the programs completely, or disable location-sharing.
`7.
`Plaintiffs had no say in Google’s continual misappropriation of their cellular data
`and remain largely powerless to stop it. Google designed its Android operating system and apps
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`to prevent users from changing the settings to disable these transfers completely or to restrict them
`to Wi-Fi networks. Because of Google’s deliberate design decisions, these passive information
`transfers using cellular data purchased by Plaintiffs are mandatory and unavoidable burdens
`shouldered by Android device users for Google’s financial benefit.
`8.
`Plaintiffs at no time consented to these transfers, and were given no warning or
`option to disable them. Google has crafted its various terms of service and policies in ways that
`purport to create binding contracts with the users of its technologies. But Plaintiffs and other
`consumers purchased their Android devices with little choice but to accept Google’s terms and
`policies, which are contracts of adhesion. Even if Google’s policies and terms of service are valid
`contracts, they do not alert users that Android devices will needlessly consume their cellular data.
`While Google informs the users of certain transfers of personal information when they are actively
`engaged with their devices, its extensive “privacy” policies are silent on mandatory, passive
`information transfers and the means by which they occur.
`9.
`These information transfers are not mere annoyances—they interfere with
`Plaintiffs’ property interests, depriving them of data for which they, not Google, paid. Each month,
`mobile device users pay their mobile carriers for cellular data that enable them to transmit and
`receive information on the carriers’ cellular data networks. Whether Plaintiffs pay for a specific
`number of gigabytes, pay a fixed price per GB, or pay for unlimited access subject to speed
`restrictions above a certain data usage threshold, the contracts between Plaintiffs and their mobile
`carriers create for Plaintiffs concrete property interests in their purchased cellular data. When it
`initiates passive transfers of information utilizing Plaintiffs’ cellular allowances, Google
`wrongfully interferes with Plaintiffs’ exclusive possession of this property and commits the
`longstanding tort of conversion.
`10.
`If cellular data is viewed as a contractual right of access to a service instead of
`property, then Google has unjustly enriched itself by misappropriating Plaintiffs’ right to transmit
`cellular data over their carriers’ networks for its own purposes, without the knowledge or consent
`of the users whose right of access Google is coopting. If that misappropriation does not state a
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`claim for conversion, it must state a claim for quantum meruit. That is because the passive
`transfers of cellular data confer a valuable benefit to Google at Plaintiffs’ expense. Google sends
`and receives information without bearing the cost of transferring that information between
`consumers and Google. Indeed, the information transmitted through this practice supports the
`company’s product development and lucrative targeted advertising business. In the absence of
`contractual provisions disclosing and permitting Google to utilize Plaintiffs’ cellular data, Google
`must compensate Plaintiffs for that use.
`11.
`This case is not about privacy. In this Amended Complaint, Plaintiffs do not
`challenge Google’s underlying practice of harvesting personal information about users from their
`interactions with mobile devices or apps. Rather, Plaintiffs challenge Google’s practice of
`effectively making mobile device users pay for the transfer of that information from their mobile
`devices to Google. As used by the carriers, and as used in this Amended Complaint, the term
`“cellular data” does not describe the underlying personal information that Google secretly causes
`Android mobile devices to transmit to it; rather, “cellular data” describes the transmission of such
`information over cellular networks charged against consumers’ cellular data plans. To avoid
`confusion, this Amended Complaint typically refers to cellular data as “data” and the underlying
`information transferred via the cellular network as “information.”
`PARTIES
`12.
`Plaintiff Joseph Taylor, who is a resident and domiciliary of Illinois, bought an
`Android mobile device that he uses with a monthly unlimited cellular data plan purchased from
`carrier Metro by T-Mobile. Plaintiff Taylor was injured in fact and has been deprived of his
`property as a result of Google’s unlawful conversion of his cellular data.
`13.
`Plaintiff Edward Mlakar, who is a resident and domiciliary of Illinois, bought an
`Android mobile device that he uses with a monthly unlimited cellular data plan purchased from
`carrier Sprint Solutions, Inc. Plaintiff Mlakar was injured in fact and has been deprived of his
`property as a result of Google’s unlawful conversion of his cellular data.
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`14.
`Plaintiff Mick Cleary, who is a resident and domiciliary of Wisconsin, bought an
`Android mobile device that he uses with a monthly unlimited cellular data plan purchased from
`carrier Verizon. Plaintiff Cleary was injured in fact and has been deprived of his property as a
`result of Google’s unlawful conversion of his cellular data.
`15.
`Plaintiff Eugene Alvis, who is a resident and domiciliary of Iowa, bought Android
`mobile devices that he has used with a monthly limited cellular data plan purchased from carrier
`Verizon from 2013 through approximately November 2019 and a monthly unlimited cellular data
`plan from U.S. Cellular from approximately November 2019 through the present. Plaintiff Alvis
`changed his Verizon monthly data limit from time to time, and at various times it was 4GB, 6GB,
`8GB, 12GB, or 25GB, depending on the plan that he chose. Plaintiff Alvis was also briefly on an
`unlimited Verizon data plan from July to October 2019. Plaintiff Alvis was injured in fact and has
`been deprived of his property as a result of Google’s unlawful conversion of his cellular data.
`16.
`Plaintiff Jennifer Nelson, who is a resident and domiciliary of Wisconsin, bought
`an Android mobile device that she uses with a monthly pay-per-GB data plan purchased from
`carrier Spectrum Mobile. She pays a fixed price for up to 1GB of data per month, and whenever
`she exceeds 1GB of data usage (which she does from time to time), she pays an additional charge
`for each additional 1GB of data. Plaintiff Nelson was injured in fact and has been deprived of her
`property as a result of Google’s unlawful conversion of her cellular data.
`17.
`Defendant Google LLC is a Delaware limited liability company with its principal
`place of business at 1600 Amphitheatre Parkway, Mountain View, California 94043. Google
`created the Android operating system and continues to control all aspects of Android’s
`programming and operation.
`
`JURISDICTION
`18.
`This Court has subject matter jurisdiction under 28 U.S.C. § 1332(d), because (1)
`this action is a “class action,” which contains class allegations and expressly seeks certification of
`a proposed class of individuals; (2) the Class defined below consists of more than one hundred
`proposed class members; (3) the citizenship of at least one class member is different from Google’s
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`citizenship;1 and (4) the aggregate amount in controversy of the claims of Plaintiffs and the
`putative Class exceeds $5,000,000, exclusive of interest and costs.
`19.
`This Court has personal jurisdiction over Google because it maintains its
`headquarters in California and in this District, and the illegal conduct alleged herein was conceived
`and implemented in whole or in part within California and this District.
`20.
`Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b) and (c).
`21.
`Google’s terms of service provide that all claims arising out of or relating to
`Google’s products and services will be litigated in federal or state courts in Santa Clara County,
`California, USA, and that Google consents to personal jurisdiction in those courts.
`I.
`GOOGLE’S ANDROID SYSTEM IS UBIQUITOUS
`22.
`Google owns and programs the most popular mobile platform in the world: the
`Android operating system. Android works on a variety of mobile devices, including smartphones
`and tablets.
`23.
`The Android operating system includes an interface that provides the principal
`means by which users interact with their devices. The interface allows consumers to access and to
`use applications and widgets on the devices.
`24.
`In addition to the Android operating system, Plaintiffs’ devices come with various
`Google applications and widgets pre-installed, including the Google search application, Chrome
`browser, Gmail email application, Google Maps, and YouTube.
`
`
`1 Because jurisdiction is based on the Class Action Fairness Act, 28 U.S.C. § 1332(d), even
`though Google LLC is a limited liability company, it is a citizen of the states “where it has its
`principal place of business and…under whose laws it is organized.” 28 U.S.C. § 1332(d)(10). In
`other words, while in traditional non-class diversity cases the citizenship of a limited liability
`company would be determined by the citizenship of its members, that principle does not apply to
`this case. See, e.g., Erie Ins. Exch. V. Erie Indemn. Co., 722 F.3d 154, 161 n.7 (3d Cir. 2013)
`(explaining that the Class Action Fairness Act “evinces an intent that suits by unincorporated
`associations be treated like suits by corporations in that the citizenship of the association for
`diversity purposes is determined by the entity’s principal place of business and not by the
`citizenship of its members”).
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`25.
`Android has been available on mobile devices since 2008 and has been the most
`dominant mobile operating system since 2011.2 It currently has about a 54.4 percent share of the
`U.S. smartphone market.3
`26.
`All or virtually all mobile carriers sell cellular data to customers via cellular data
`plans that allow Android devices to connect to their cellular networks in order to send and receive
`internet communications. These mobile carriers sell mobile devices directly to consumers. Among
`the mobile carriers that sell Android devices for connection to their cellular networks are Verizon,
`AT&T, Sprint, T-Mobile, and U.S. Cellular.
`27. Many of the most popular mobile-device manufacturers sell devices with Android
`preinstalled as the operating system and often with a suite of Google’s mobile apps preinstalled.
`These manufacturers include Samsung, Motorola, LG, Kyocera, Sonim, Huawei, ZTE, and HTC.
`
`II.
`
`PLAINTIFFS HAVE A PROPERTY INTEREST IN THEIR CELLULAR
`DATA
`
`28.
`Plaintiffs purchased mobile devices preloaded with Google’s Android operating
`system and suite of mobile apps and widgets.
`29.
`To use their mobile devices, Plaintiffs contracted with mobile carriers. As part of
`these contracts, Plaintiffs purchase cellular data from their mobile carriers through cellular data
`plans that allow Plaintiffs to access the carriers’ cellular data networks, thereby providing users
`with the ability to send and receive information over the internet without a Wi-Fi connection.
`30.
`Though cellular data networks provide a critical resource for mobile devices, they
`are not necessary for the mobile device to send and receive information through the internet. When
`users do not wish to use their cellular networks or when they are unable to use them, mobile devices
`can also transfer and receive information over the internet through Wi-Fi connections. Indeed,
`
`
`2 Charles Arthur, The History of Smartphones: Timeline, GUARDIAN (Jan. 24, 2012),
`https://www.theguardian.com/technology/2012/jan/24/smartphones-timeline.
`3 Subscriber Share Held by Smartphone Operating Systems in the United States: 2012 to 2018,
`STATISTA, https://www.statista.com/statistics/266572/market-share-held-by-smartphone-
`platforms-in-the-united-states/.
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`many cost-conscious users maximize their time on Wi-Fi whenever possible and use their cellular
`networks only when Wi-Fi connections are unavailable in order to “save” the cellular data
`available under their monthly carrier plans.
`31.
`Cellular data plans vary by carrier, but they function in essentially the same way.
`The users pay the carrier a certain price each month, and in exchange, they purchase cellular data,
`which they can use to send and receive information on their devices through the carrier’s cellular
`network. Some users purchase limited data plans, meaning a fixed amount of cellular data for a
`fixed price, e.g., 8GB per month. Users with limited data plans are typically charged an overage
`fee if they use more data than they have purchased in a given month, e.g., if they exceed the 8GB
`limit. Other users buy cellular data incrementally, on a pay-per-GB basis, meaning that they pay
`a fixed amount for 1GB of data, and if they use more than 1GB of data that month, they pay another
`fixed amount for a second GB of data. Users with such “pay-per-GB” plans pay a fixed charge
`(though not labeled an “overage”) for each additional GB of data that they use each month. Still
`other users have unlimited plans, essentially requirements contracts, which appear to offer
`unlimited data usage, but in reality are still nearly always subject to quotas on their usage and will
`have their cellular connection speeds throttled if they exceed such quotas. For example, a typical
`“unlimited” data plan actually has a data cap of, e.g., 20GB per month. If the user exceeds that
`data cap, the user is “throttled,” which means the speed at which he or she can access the cellular
`network is greatly reduced. When throttled to reduced speeds, a number of functionalities are
`typically lost entirely (such as video streaming), and the overall performance of the device is
`significantly impaired. Users who are throttled typically notice a network slowdown or an inability
`to use their device, but often do not realize that they have been throttled, and instead attribute the
`slowdown or lack of access to general network issues.
`32.
`Some users do not have data plans at all—instead, they purchase prepaid SIM cards
`(or prepaid cellular phones) that have a particular allocation of data associated with the SIM card
`(or phone) at the time of purchase, e.g., 25GB. When the user purchases that SIM card (or
`phone),what they are buying is the advertised amount cellular data, e.g. 25GB. Once that data is
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`used up, it is gone. Sometimes the user has the opportunity to purchase additional data at that
`point, but the original cellular data that the user purchased has been used up.
`33.
`The purchase of data plans from mobile carriers creates a property interest for
`Plaintiffs in their cellular data. Each megabyte or gigabyte of the cellular data has a fair market
`value, determined by market forces. By contracting for the purchase of their cellular data, Plaintiffs
`obtain access to send and receive information on the carriers’ networks in the amounts provided
`by the terms of the contract. This access includes the right to exclude other persons and entities
`from using Plaintiffs’ cellular data. Plaintiffs have the right to determine precisely how to use their
`cellular data and to grant others access to those allowances through their mobile device activity.
`34.
`For example, Android users may explicitly grant others access to their cellular data
`by creating a mobile “hotspot,” in which the mobile device shares its cellular network connection
`with other nearby devices so that those devices can access the internet once they are given the
`hotspot’s password. Similarly, “tethering” (either through a USB cable, Wi-Fi sharing or a
`Bluetooth connection) allows users to connect their mobile device with a computer to share the
`device’s cellular network connection and grant the computer access to their cellular data. Users
`can also sell unused cellular data. See, e.g., https://www.simplify.network/ (mobile app enabling
`Android users to sell their excess data via hotspot).
`III. MOBILE DEVICE USERS ONLY CONSENT TO GOOGLE’S USE OF
`THEIR CELLULAR DATA WHEN THEY ACTIVELY USE GOOGLE’S
`PRODUCTS
`35.
`Under certain circumstances, mobile device users consent to the use of their cellular
`data. For example, when users actively engage with applications that require internet access while
`connected only to their cellular network, they instruct the applications to use some of their cellular
`data, thus authorizing such use. For example, when a user is in an area without Wi-Fi, opens a
`browser, and types in a web address, the user consents to use her cellular data to send information
`to the website’s server and to allow the website to send information over the mobile carrier’s
`cellular network to the device. Similarly, when that user opens a video app and requests to view a
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`video, she consents to allow the app to send a video to her device over her mobile carrier’s cellular
`network and for that usage to count toward her allowance.
`36.
`These active transfers of information that are initiated by the user engaging an
`application are not at issue in this lawsuit. Plaintiffs do not contest Google’s right to use Plaintiffs’
`cellular data pursuant to their consent when Plaintiffs are actively using Google’s various products
`on their mobile devices.
`37.
`Plaintiffs instead challenge Google’s misappropriation of their cellular data,
`without Plaintiffs’ consent, based on “passive transfers,” meaning information transfers that occur
`in the background or that do not result from Plaintiffs’ direct engagement with Google products
`on their devices. These passive transfers, described in more detail below, occur in a variety of
`ways—including when Google applications are open (though not in active use) and operating in
`the background, and even when a user has closed out all Google applications on her device and
`the device is stationary and seemingly dormant. In none of the Google policies discussed below
`does Google notify users that its operating system, applications, and widgets cause users’ mobile
`devices to indiscriminately consume Plaintiffs’ cellular data, even when users are not using an app
`or widget on their devices.
`IV. GOOGLE’S MISAPPROPRIATION OF PLAINTIFFS’ CELLULAR DATA
`38.
`Google designed and implemented its Android operating system and apps to extract
`and transmit large volumes of information between Plaintiffs’ cellular devices and Google using
`Plaintiffs’ cellular data. Google’s misappropriation of Plaintiffs’ cellular data through passive
`transfers occurs in the background, does not result from Plaintiffs’ direct engagement with
`Google’s apps and properties on their devices, and happens without Plaintiffs’ consent.
`39.
`These passive transfers occur in a variety of ways. First, such transfers occur when
`mobile devices are in a completely idle state, meaning they are stationary, untouched, and with all
`apps closed. To confirm this, an analysis commissioned by Plaintiffs’ counsel tested a new
`Samsung Galaxy S7 mobile device with the standard default settings accepted and standard pre-
`loaded set of apps, which was connected to a brand-new Google account and was not connected
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`to Wi-Fi. The analysis found that when the device was left in an idle state, the device sent and
`received 8.88 MB per day of data, with 94% of those communications occurring between Google
`and the device. In all, the device transferred information to and from Google approximately 389
`times in 24 hours, for an average of more than 16 times per hour. The frequency of passive
`information transfers in this experiment was striking given the source: a stationary and untouched
`Android device, with all apps closed.
`40. Many of those communications were comprised of LOG files, which are
`automatically-produced files that contain a record of certain background information such as the
`networks that are available, apps that are open, and metrics about the operating system. LOG files
`are typically not time-sensitive, and transmission of them could easily be delayed until Wi-Fi is
`available. Google could also program Android to allow users to enable passive transfers only when
`they are on Wi-Fi connections, but it has chosen not to do so. Instead, Google has chosen to simply
`take advantage of Plaintiffs’ cellular data so that it can get information from Plaintiffs at all hours
`of the day, no matter where they are or what they are doing.
`41.
`Second, a higher volume of passive transfers occurs when mobile devices are
`stationary and untouched, but with one or more apps open and unused. Vanderbilt University
`Professor Douglas C. Schmidt performed a study of Google’s data collection efforts in 2018. See
`Ex. 1, Douglas C. Schmidt, Google Data Collection (Aug. 15, 2018). He found that both Android
`and Chrome transmit information to Google “even in the absence of any user interaction.” Id. at 3
`(emphasis in original). Professor Schmidt conducted an experiment with an Android device that
`was outwardly dormant and stationary but with Chrome open and in the background, and he found
`passive transfers4 to Google occurred approximately 900 times in 24 hours, id. at 14, for an average
`of 38 times per hour.
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`4 Professor Schmidt consistently defined “passive” information transfers as “information
`exchanged in the background without any obvious notification to the user,” in contrast to
`“active” transfers, which he defined as “information directly exchanged between the user and a
`Google product.” (Id. at 7.)
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`42.
`In comparison, a stationary and untouched iPhone device with the Safari browser
`open in the background communicated virtually no information to Google, and its information
`transfers to Apple amounted to only about 1/10th of the information transferred to Google from
`the Android device. Id. at 3, 14.
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`(Ex. 1 at p. 14, Figure 6, Traffic data sent from idle Android and iPhone mobiles.)
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`43.
`The Android device passively transferred 4.4 MB of data each day, or around
`130MB each month, to Google servers, while the iPhone device transferred around 1/6th that
`volume of data to Google servers. Id. at 14.
`44.
`The contrast between the number of requests made to the two devices, as well as
`the volume of data transferred from the devices, confirms that Google’s products play critical roles
`in passive information transfers to Google—and that the vast majority or all of these transfers are
`unnecessary.
`45.
`Third, even more passive transfers occur once users begin moving around with their
`Android devices, or interacting with them by visiting web pages, or using apps, despite also
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`eschewing the use of any preloaded Google apps such as Google Search, YouTube, Gmail, or
`Google Maps. Id. at 3, 23. This increased activity was driven by Google’s publishing and
`advertising products including Google Analytics, DoubleClick (now Google Ad Manager), and
`AdWords (now Google Ads). Id. at 3, 15. Passive information transfers represented 46% of
`requests to Google servers from the device in the Schmidt experiment. Id. at 3–4.
`46.
`An iPhone device (again, without the Android operating system or Google’s
`applications) in comparable active use communicated with Apple far less frequently than Android