In re Google, Inc. Privacy Policy Litig., Case No. 5:12–cv–01382–PSG
| Decision Date | 21 July 2014 |
| Docket Number | Case No. 5:12–cv–01382–PSG |
| Citation | 58 F.Supp.3d 968 |
| Court | U.S. District Court — Northern District of California |
| Parties | In re Google, Inc. Privacy Policy Litigation. |
Diane Zilka, Kyle J. McGee, Grant And Eisenhofer, Wilmington, DE, Kelly A. Noto, James S. Notis, Jennifer Sarnelli, Mark C. Gardy, Gardy & Notis LLP, Englewood Cliffs, NJ, Martin Stuart Bakst, Attorney at Law, Encino, CA, Annick Marie Persinger, Lawrence Timothy Fisher, Sarah Nicole Westcot, Yeremey O. Krivoshey, Bursor & Fisher, P.A., Walnut Creek, CA, James J. Sabella, Grant and Eisenhofer, Orin Kurtz, Gardy and Notis, LLP, New York, NY, for Plaintiffs.
Michael Henry Page, Durie Tangri LLP, San Francisco, CA, for Defendant.
(Re: Docket Nos. 71, 77)
PAUL S. GREWAL, United States Magistrate JudgeOver two years ago, Plaintiffs1 filed this lawsuit against Defendant Google, Inc. for commingling user data across different Google products and disclosing such data to third parties.2 Since then, the court has twice dismissed Plaintiffs' claims. Google now moves for a third dismissal.
Like Rocky rising from Apollo's uppercut in the 14th round, Plaintiffs' complaint has sustained much damage but just manages to stand. The court GRANTS the motion, but only IN–PART.
This is a nationwide, putative class action against Google on behalf of all persons and entities in the United States that acquired a Google account between August 19, 2004 and February 29, 2012, and continued to maintain that Google account on or after March 1, 2012, when a new Google privacy policy went into effect. Plaintiffs also bring nationwide class claims against Google on behalf of (a) all persons and entities in the United States that acquired an Android-powered device between May 1, 2010 and February 29, 2012 and switched to a non-Android device on or after March 1, 2012 (the “Android Device Switch Subclass”); and (b) all persons and entities in the United States that acquired an Android-powered device between August 19, 2004 and the present, and downloaded at least one Android application through the Android Market and/or Google Play (the “Android App Disclosure Subclass”).4
Google is a technology and advertising company that provides free web-based products to billions of consumers around the world. Google can offer its products free of charge due to its primary business model—advertising. In 2011, Google's revenues were $37.91 billion, approximately 95% of which ($36.53 billion) came from advertising. In 2012, Google's revenues increased to $46.04 billion, approximately 95% of which ($43.69 billion) came from advertising.5
In order to accomplish this, Google logs personal identifying information, browsing habits, search queries, responsiveness to ads, demographic information, declared preferences and other information about each consumer that uses its products. Google's Gmail service also scans and discloses to other Google services the contents of Gmail communications. Google uses this information, including the contents of Gmail communications, to place advertisements that are tailored to each consumer while the consumer is using any Google product or browsing third-party sites that have partnered with Google to serve targeted ads.6
Before March 1, 2012, information collected in one Google product was not automatically commingled with information collected during the consumer's use of other Google products. Google did not, for instance, ordinarily and automatically associate a consumer's Gmail account (and therefore his or her name and identity, his or her private contact list, or the contents of his or her communications) with the consumer's Google search queries or the consumer's use of other Google products like Android, YouTube, Picasa, Voice, Google+, Maps, Docs, and Reader.7
Google has always maintained a general or default privacy policy purporting to permit Google to “combine the information you submit under your account with information from other services.”8 However, before the introduction of the new privacy policy on March 1, 2012, this statement was qualified, limited, and contradicted in privacy policies associated with specific Google products, including both Gmail and Android-powered devices. The privacy policies associated with Android-powered devices, for example, specified that, although the default terms would generally apply, “[c]ertain applications or features of your Android-powered phone may cause other information [that is, other than certain delimited “usage statistics”] to be sent to Google but in a fashion that cannot be identified with you personally” and that “[y]our device may send us location information (for example, Cell ID or GPS information) that is not associated with your [Google] Account.” These categories of information, and certain other discrete categories of Android user information, identified by the terms of the Android-powered device policy in effect prior to March 1, 2012, could affirmatively not be “combine[d] ... with information from other services.”9
On March 1, 2012, however, Google replaced those policies with a single, unified policy that allows Google to comingle user data across accounts and disclose it to third-parties for advertising purposes.10 Plaintiffs, who each either acquired a Google account or purchased an Android-powered device before or on February 29, 2012, were not pleased and filed this suit.
Plaintiffs brought their original complaint on March 20, 2012 and consolidated it with related actions on June 8, 2012.11 The complaint presented a bare-bones theory that, by switching to the less-restrictive privacy policy without user consent, Google violated both its prior policies and consumers' privacy rights.12 However, Plaintiffs did not plead facts sufficient to show concrete economic harm or prima facie statutory or common law violations, so the court dismissed the complaint for lack of standing.13 Because the court was without jurisdiction to consider Plaintiffs' substantive allegations, the dismissal provided Plaintiffs leave to amend their complaint.14
Plaintiffs' first amended complaint, filed on March 7, 2013, expanded the bounds of the alleged classes, as well as the explanations of Plaintiffs' injuries.15 After Google again moved to dismiss, the court held that Plaintiffs have sufficiently plead standing,16 but nonetheless granted the motion because Plaintiffs did not plead sufficient facts to support any of their claims.17 Although Plaintiffs were granted leave to amend, the court warned “that any further dismissal [would] likely be with prejudice.”18 The most significant allegations added concern Google's plan entitled “Emerald Sea.”19 Unveiled within Google as early as May, 2010,20 Emerald Sea's apparent objective was “to reinvent [Google] as a social-media advertising company.”21 The plan's execution involves creating cross-platform dossiers of user data that would allow third-parties to better tailor advertisements to specific consumers.22 Plaintiffs allege that despite this objective, Google left in place the prior policies in order to avoid tipping-off consumers.23 They cast Emerald Sea as evidence of Google's intent to deceive consumers by disregarding existing privacy policies in pursuit of ad revenue.24
With these new allegations in place, Plaintiffs allege effectively the same harms as before. The class as a whole complains that commingling and disseminating user data violates Google's prior privacy policies and constitutes an unreasonable invasion of consumer privacy.25 The Android Device Switch Subclass further complains that in order to avoid such an invasive policy, the class members replaced their Android devices and incurred costs in doing so.26 Additionally, the Android Application Disclosure Subclass claims Google's disclosures to third parties caused increased battery and bandwidth consumption as well as invasions of Plaintiffs' statutory and common law privacy rights.27 Plaintiffs frame these complaints within six legal theories: violations of the California Consumers Legal Remedies Act (“CLRA”), Federal Wiretap Act, Stored Electronic Communications Act, California's Unfair Competition Law (“UCL”), and common law theories of breach of contract and intrusion upon seclusion.28
Google now moves to dismiss this case once and for all, again arguing that Plaintiffs' lack standing and have failed to plead facts sufficient to substantiate their claims.
To satisfy Article III, a plaintiff “must show that (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”29 A suit brought by a plaintiff without Article III standing is not a and an Article III court lacks subject matter jurisdiction over the suit.30 In that event, the suit should be dismissed under Fed. R. Civ. Pro. 12(b)(1).31
The injury required by Article III may exist by virtue of “statutes creating legal rights, the invasion of which creates standing.”32 In such cases, the “standing question ... is whether the constitutional or standing provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief.”33 At all times the threshold question of standing “is distinct from the merits of [a] claim” and does not require “analysis of the merits.”34 The Supreme Court also has instructed that the “standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.”35
A complaint must contain “a short and...
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