Google’s New AI-Powered Customer Service Tools Spark Back-to-Back Class Action Lawsuits
Zion Mercado
Google recently began rolling out “human-like generative AI powered” customer service tools to help companies enhance their customer service experience.[1] This new service is known as the “Cloud Contact Center AI,” and touts a full package of customer service-based features to help streamline customer service capabilities.[2] Companies who utilize the new service can create virtual customer service agents, access AI-generated insights providing feedback on customer service interactions, store and manage data on a specialized “Contact Center AI Platform,” and consult with Google’s team of experts on how to improve the AI-integrated systems.[3] However, one key feature that has recently come into controversy is the ability for customers to utilize real-time AI-generated responses to customer inquiries which can then be relayed back to the customer by a live agent.[4] This is known as the “Agent Assist” feature.
Agent Assist operates by “us[ing] machine learning technology to provide suggestions to . . . human agents when they are in a conversation with a customer.”[5] These suggestions are based on the company’s own data and conversations.[6] Functionally, when Agent Assist is in use, there are two parties to the conversation: the live customer service agent, and the customer. The AI program listens in and generates responses in real time for the live customer service agent. Some have argued that this violates California’s wiretapping statute by alleging that the actions of Google’s AI program, which is nothing more than a complex computer program, are attributable to Google itself.[7] Those who have done so have alleged that Google, through its AI-integrated services, has been listening in on people’s conversations without their consent or knowledge.[8]
The wiretapping statute in question is a part of the California Invasion of Privacy Act (“CIPA”), and prohibits the intentional tapping, reading, or any other unauthorized connection, whether physically or otherwise, with any communication being transmitted via line, wire, cable, or instrument without the consent of all parties to the communication.[9] It is also unlawful under the statute to communicate any information so obtained or to aid another in obtaining information via prohibited means.[10]
In 2023, a class action lawsuit was filed against Google on behalf of Verizon customers who alleged that Google “used its Cloud Contact Center AI software as a service to wiretap, eavesdrop on, and record” calls made to Verizon’s customer service center.[11] In the case, District Court Judge Rita F. Lin granted Google’s motion to dismiss on grounds that the relationship between Google and Verizon and the utilization of the Cloud Contact Center AI service fell squarely within the statutory exception to the wiretapping statute.[12] Now, the wiretapping statute does contain an explicit exception for telephone companies and their agents, which is the exception upon which Judge Lin relied; however, that exception is narrowed to such acts that “are for the purpose of construction, maintenance, conduct or operation of the services and facilities of the public utility or telephone company.”[13]
I am not convinced that this statutory exemption was intended to allow a telephone company to permit third parties to listen and record customer service calls for the purpose of enhancing their customer service system. However, this issue is beyond the scope of this post and requires a deep dive into the legislative intent behind the statute and a thorough analysis of decades of interpretation. The reason I bring up Ambriz v. Google, LLC is because the same set of facts are being litigated again, except this time, neither Google nor the company it contracted with will be able to rely on the above-described statutory exemption.
Earlier this month, the same law firm that brought Ambriz before the California bar filed another class action suit against Google, this time on behalf of Home Depot customers, alleging essentially the same facts as Ambriz and presenting almost identical legal arguments.[14] In this second litigation, the plaintiffs will be able to get through the statutory exemptions that blocked the plaintiffs in Ambriz, because Home Depot is not a telephone company.[15] However, there is another problem in the arguments posed in this second litigation that was present in Ambriz, but not touched upon due to the Judge’s ruling on the statutory exemption. This problem being that the plaintiffs are attributing actions performed by the AI program to Google itself.[16] The plaintiffs allege that the AI program is merely a mechanism used to engage in conduct prohibited under the wiretapping statute, however, the plaintiffs have failed to allege that Google has done anything more than provide an AI program to screen internal customer calls.[17] Essentially, the allegations in both complaints are bare as to showing exactly how Google itself became a third party to customer service calls, a requirement to a cause of action under California’s wiretapping statute.[18]
Moreover, the allegations are not at all in line with how the Cloud Contact Center AI service actually operates, or at least, they are not in line with how Google markets the service’s operations to customers. According to Google, the Cloud Contact Center AI generates responses for its Agent Assist feature in two ways. The program either generates a response based on articles and FAQ-type documents or on analysis from a library of thousands of recorded customer service calls, which are typically annotated by the company who records them.[19] Regardless of where the AI pulls the information, the information is not supplied by Google.[20] Moreover, it is not clear from the facts alleged in the complaint that Google itself actually listens in on calls; in fact, it seems like the opposite is true. Google’s AI program does process information from a customer service call, but it is not specifically alleged in either of the class-actions suits that Google receives any of the processed information. Moreover, it is not alleged that the transcripts of any calls end up in the possession of Google.[21] It is alleged that Google could use information and data obtained through its recording of customer service calls to further train its AI program, citing to the Service Specific Terms for the Cloud Contact Center AI which gives Google such authority with consent of the company with whom they are contracting.[22] However, the allegations fail to state whether this has actually been done, and nowhere was it alleged that Google intended to use data submitted by companies without the consent of all involved parties.[23]
Essentially, the plaintiffs in both lawsuits (and more pointedly, their lawyers since the same law firm brought both cases to bar) fail to establish in their respective complaints a true connection between the functions that Google’s customer service software serves and the actions of Google itself. Google’s AI service is an instrument, but not an instrument marketed or used so that Google as a company can listen in on customer service calls. It is rather a tool to be used by companies so that they can enhance their own customer service experience, and unless the plaintiffs can find through the discovery process that Google is improperly using the Agent Assist function of the Cloud Contact Center AI to listen in on certain customer calls, it is likely that the plaintiffs in the current litigation will lose. However, this case is still important to follow because, as stated earlier, the plaintiffs will not face the statutory exemption that the Ambriz plaintiffs did, so it is possible that this case could go to trial and through an extensive discovery process it could be found that Google utilizes the Cloud Contact Center program in more nefarious ways than it makes public. But as the facts are alleged, it seems that the Cloud Contact Center is more akin to an inanimate tool than an extension of Google itself sent to absorb information.
References
[1] Contact Center AI, Google Cloud, https://cloud.google.com/solutions/contact-center/?hl=en#partners (last visited Sep. 15, 2024).
[2] See Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] See Complaint at 35-41, Barulich v. Google, LLC, No. 24-cv-06225 (N.D. Cal. 2024); Ambriz v. Google, LLC., 2024 U.S. Dist. LEXIS 119619 at *2-6 (N.D. Cal.).
[8] See Id.
[9] Cal. Penal Code § 631(a).
[10] Id.
[11] Ambriz v. Google, LLC, 2024 U.S. Dist. LEXIS 119619 at *1-2 (N.D. Cal.).
[12] See Id.
[13] Cal. Penal Code § 631(b)(1).
[14] Kat Black, Google Slapped With Digital Privacy Class Action Over Use of Customer Service AI Product, Law.com (Sep. 5, 2024, 9:52 AM), https://www.law.com/therecorder/2024/09/05/google-slapped-with-digital-privacy-class-action-over-use-of-customer-service-ai-product/; see generally Complaint, Barulich v. Google, LLC, No. 24-cv-06225 (N.D. Cal. 2024).
[15] See Cal. Penal Code. § 631(b).
[16] See Complaint at 54-59, Barulich v. Google, LLC, No. 24-cv-06225 (N.D. Cal. 2024).
[17] See id. at 54.
[18] See id.; Complaint at 49-60, Ambriz v. Google, LLC, 2024 U.S. Dist. LEXIS 119619 (N.D. Cal.) (No. 23-cv-05437-RFL); Cal. Penal Code § 631(a).
[19] Create a Knowledge Base, Google Cloud, https://cloud.google.com/agent-assist/docs/knowledge-base (last visited Sep. 15, 2024).
[20] Id.
[21] See Complaint at 49-60, Ambriz, 2024 U.S. Dist. LEXIS 119619 (N.D. Cal.) (No. 23-cv-05437-RFL); Complaint at 54-59, Barulich, No. 24-cv-06225 (N.D. Cal. 2024).
[22] Id.
[23] Id.
