Trial News

In a significant ruling for data privacy advocates, the Ninth Circuit reopened Google Chrome users’ class action alleging the tech company unlawfully collected users’ data in violation of various state and federal laws. Reversing an order granting summary judgment to Google, the court found that the district court should have assessed whether “reasonable” users of Google’s product would think they consented to Google’s data collection practices rather than focusing on “browser agnosticism.” (Calhoun v. Google, LLC, No. 4:20-cv-05146-YGR (9th Cir. Aug. 20, 2024).)

The plaintiffs are a group of Google Chrome users who opted not to sync their Google Chrome browsers with their Google accounts from July 27, 2016, to the present. The plaintiffs claim they believed their choice—based on the terms outlined in Google’s Chrome Privacy Notice—would prevent Google from collecting and using certain personal information while they browsed the web. However, they contend that Google continued to collect data without their explicit consent, thereby breaching privacy protections under the California Invasion of Privacy Act (CIPA), the Electronic Communications Privacy Act (ECPA), and other state and federal laws.

The district court granted summary judgment in favor of Google, finding that the tech company demonstrated that the plaintiffs had consented to its data collection practices. In determining whether Google’s general policies or the Chrome Privacy Notice governed the defendant’s conduct in this case, the court found that the data at issue was “browser agnostic,” meaning that it would have been transmitted to Google regardless of the browser used. Thus, the court determined that Google’s general policies applied and based on the terms of those agreements, its disclosures were clear enough to inform users about what data would be collected—even if they chose not to sync their Chrome browsers.

The plaintiffs appealed, arguing that the district court had failed to apply the proper legal standard in determining whether they had genuinely consented to the data collection. AAJ filed an amicus brief in support of the plaintiffs.

The Ninth Circuit reversed, finding that the district court had improperly focused on “browser agnosticism” rather than applying the appropriate “reasonable person” standard. It said the district court should have examined whether a reasonable user, interpreting Google’s privacy disclosures, would have understood that they were consenting to the company’s data collection practices. The court emphasized that the disclosures Google provided were not clear enough to establish, as a matter of law, that users had consented to the collection of their data. “Viewed in the light most favorable to the plaintiffs,” the court wrote, “browser agnosticism is irrelevant because nothing in Google’s disclosures is tied to what other browsers do.” This finding indicates that material disputes of fact exist concerning whether “reasonable” users were adequately informed about the data collection practices and whether they knowingly consented to them.

Washington, D.C., attorney Matthew Kessler, one of the attorneys representing the plaintiffs, said, “This decision is a win for consumers to have control over their data privacy when up against tech companies like Google. With this ruling, the court has adopted the appropriate standard . . . when it comes to evaluating consent for one’s data to be shared. This now provides a path forward for these plaintiffs to ensure Google can be held accountable for misleading users about the privacy of their data.”

AAJ’s Senior Associate Counsel Jeffrey White, who wrote the association’s amicus brief, said, “The Ninth Circuit did a big favor to the many computer users who worry that, buried in the documents that online companies demand they ‘accept,’ is permission for the company to use their personal information as its own asset. The court cut through the tangle of privacy policies to state that the proper standard is how a reasonable user would interpret them. It is a question that should go to the jury.”