A unanimous Ninth Circuit panel handed a major victory to users of Google’s Chrome web browser, reinstating a nationwide data privacy class action that challenges Google’s intentional collection of Chrome users’ personal information, including sensitive web browsing information, without their consent.
In an August 20 opinion written by Judge Milan D. Smith Jr., the U.S. Court of Appeals for the Ninth Circuit reversed the Northern District of California’s summary judgment in favor of Google, finding that “the district court failed to apply the correct standard” by not considering whether a “reasonable user” would have consented to Google’s data collection practices.
The lawsuit was first filed by attorneys at DiCello Levitt and co-counsel Simmons Hanly and Bleichmar Fonti in July 2020, following an expert inspection of HTTP traffic on Chrome browsers. The inspection revealed that Chrome sent vast amounts of users’ personal information to Google regardless of whether those users chose to sync their browsers with their Google accounts. Google had promised, however, that Chrome would not send personal information to Google unless the Chrome user elected to sync the browser with a Google account.
Google did not deny the results of the expert investigation but argued that Google’s Chrome-specific privacy promises did not apply when the company-wide privacy policy generally describes data collection when visiting Google partner websites. Google argued that the general policy should govern any browser-agnostic data collection—i.e., that the Chrome-specific privacy promises should only apply to Chrome functions that are unique to Chrome.
The Ninth Circuit fully rejected Google’s argument, finding that Google’s disclosures and promises must be interpreted based on how a “reasonable user” with ordinary computer skills would interpret them instead of focusing on “browser agnosticism,” a standard that required more than seven hours of expert testimony in the district court to figure out. But as the Ninth Circuit wrote, “browser agnosticism is irrelevant because nothing in Google’s disclosures is tied to what other browsers do.”
This decision, which sends the case back to the district court for trial, assuming a plaintiff class is certified, holds that a jury must decide how a reasonable Chrome user with ordinary computer skills would have understood Google’s disclosures and promises.
The DiCello Levitt team is led by Partner David Straite, assisted by Amy Keller, Adam Prom, and Corban Rhodes.
DiCello Levitt thanks appellate counsel Matthew Wessler at Gupta Wessler, who did a masterful job at oral argument. DiCello Levitt is also grateful for the amicus support from a bipartisan coalition of 19 states, led by the State of Texas; the Electronic Privacy Information Center (EPIC); the American Association for Justice; and the Consumer Attorneys of California.
The case is Calhoun, et al. v. Google, Case No. 20-CV-05146 (N.D. Cal.).