Mass. Gov., Public Health Dept. Say Privacy Lawsuit Over Contract-Tracing App 'Moot'

Massachusetts Gov. Maura Healey (D) and Department of Public Health (DPH) Commissioner Robert Goldstein, substituting for Margret Cooke, whom he succeeded in April, filed Monday a motion to dismiss (docket 3:22-cv-11936) as “moot” and for failure to state a claim the first amended complaint for declaratory and injunctive relief in a November privacy lawsuit (see 2211250008). Defendants' motion in U.S. District Court for Massachusetts in Springfield also requested oral argument.

Plaintiff Robert Wright alleged Massachusetts’ DPH conspired with Google during the COVID-19 pandemic to “hijack” consumers’ smartphones without their knowledge or consent by installing “spyware” that tracks and records their movements and personal contacts “without their owners’ permission and awareness (see 2211250008)." In June 2021, DPH worked with Google to “automatically distribute” a subsequent version of the app, the Contract Tracing app, to Android devices “so users don’t have to download a separate app,” said the complaint.

Wright’s class action, representing six individuals who live or work in Massachusetts, alleges the “MassNotify Setting” of the Google technology -- an optional exposure notification setting installed by the company on its Android devices -- violated their Fourth and Fifth Amendment rights. Those claims are moot as of May 11, said defendants’ motion to dismiss, when MassNotify was no longer operational due to expiration of the federal COVID-19 public health emergency, .

Even if the claims were not moot, the amended complaint fails to state a claim because it didn’t allege any facts plausibly suggesting that implementation of MassNotify constituted a “search” under the Fourth Amendment, defendants said. Plaintiffs also claimed constitutional property interests in having an app, “especially one that they did not want or agree to have installed” that use up storage space on their Android devices or drain the batteries, said the amended complaint. The facts don't support those Fifth Amendment claims, defendants' motion said.

DPH’s contact tracing app doesn't appear alongside other apps on the Android device’s home screen so the typical device owner "would remain unaware of its presence," said the amended complaint. The app can be found only by opening “settings” and using the “view all apps” feature, it said. Plaintiffs seeks an injunction prohibiting continued installation of the MassNotify setting without users’ permission and an order requiring defendants to work with Google to uninstall the software from private Android devices they don’t have permissions for. It also seeks an order requiring defendants to delete all records DPH collected via MassNotify. “They are entitled to no such relief,” defendants said, citing the discontinuance of MassNotify this month.

Plaintiffs added Healey to the suit in the March amended complaint after the former attorney general became governor of the state in January. The amended complaint “fails to allege any factual or legal bases for including the Governor in this lawsuit,” said defendants’ motion to dismiss.