Google Class Action Revived on Appeal

Earlier this week, a panel of the Ninth Circuit Court of Appeals reversed a district court’s grant of summary judgment in favor of Google in a putative class action brought on behalf of users of Google Chrome who chose not to sync their browsers with their Google accounts while surfing the web. According to the plaintiffs, they believed that by not syncing their accounts, their personal information would not be collected by Google. This belief was based on the language of Google’s Chrome Privacy Notice, which provided, inter alia, that “[t]he personal information that Chrome stores won’t be sent to Google unless you choose to store that data in your Google Account by turning on sync . . .” The plaintiffs further alleged, and Google did not deny, that Google nevertheless collected users’ personal information while they were using Chrome in an un-synced mode.

At the summary judgment stage, Google argued that the plaintiffs consented to this data collection when they agreed to Google’s Privacy Policy, as well as additional notices provided to users, which disclosed the data collection. The district court analyzed which of the various policies governed the data collection at issue, and concluded that because the data collection was “browser-agnostic” (i.e., was not Chrome-specific, but instead occurred regardless of the browser utilized by the user), the more general Google policies—rather than the Chrome Privacy Notice—applied to the plaintiffs’ claims. And because the plaintiffs had consented to these general policies, a reasonable user would understand that their data was being collected.

On appeal, the 9th Circuit panel reversed the district court’s grant of summary judgment, concluding that the district court’s focus on browser agnosticism was misplaced. The appellate court explained that the district court should have reviewed the various disclosures and decided whether a reasonable user reading them would think that he or she was consenting to the relevant data collection. Because the Chrome Privacy Notice specifically detailed the distinctions between Chrome browsing modes, and affirmatively stated that Google would not collect information unless sync was turned on, while the more general Privacy Policy only briefly mentioned the sync/non-sync distinction, the court concluded that a reasonable user would not necessarily understand that they were consenting to the data collection at issue, and remanded the issue for trial.

The case is Calhoun v. Google, LLC, No. 22-16993, 2024 U.S. App. LEXIS 20978 (9th Cir. Aug. 20, 2024).