Second Google Privacy Case Moves Forward

In this Nov. 5, 2018 file photo, a woman walks past the logo for Google at the China International Import Expo in Shanghai. (AP Photo/Ng Han Guan)

(CN) — Google must face another privacy lawsuit just days after the same federal judge allowed a separate but similar privacy case against the Silicon Valley giant to proceed. 

U.S. District Court Judge Lucy Koh said Google must face claims the company is misleading its customers by insinuating it will not collect user data unless it chooses to turn on the sync function while browsing the internet with Chrome, an internet browser developed and maintained by Google. 

“Google did not notify users that Google engages in the alleged data collection,” Koh wrote in a 39-page ruling issued late Wednesday night. “To the contrary, Google’s representations might have led a reasonable user to believe that Google did not collect his or her personal information when the user was not synced.”

Specifically, Koh pointed to Google’s own Chrome Privacy Notice, which stated during the relevant period: “The 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.”

Google argued that the plaintiffs in question consented to having their data tracked by signing up to the terms of service, where the practice was spelled out. 

But Koh disagreed with Google’s framing. 

“Google cannot show that plaintiffs expressly consented to Google’s collection of data,” Koh wrote, adding that the plaintiffs were not made aware their data was being collected. 

Google also attempted to argue that independent websites agreed to participate in Google’s tracking program, meaning the company did not violate the Wiretap Act, which stipulates that parties must be unaware of data interception. 

Koh remained unpersuaded by the argument. 

“The court concludes that Google has not met its burden to establish consent because, even assuming that Google has established that websites generally consented to the interception of their communications with users, Google does not demonstrate that websites consented to, or even knew about, the interception of their communications with users who were using Chrome without sync,” the judge wrote. 

Google also raised statute of limitations issues with the claims which were also rejected by the court. 

Google, despite losing its motion to dismiss on the central claims of the case, did prevail on other less important elements. 

For instance, plaintiffs sought an unauthorized disclosure claim under the Wire Tap Act, saying the company unlawfully disclosed their information to their parties, specifically for the purposes of targeted advertising. 

Koh said there is no evidence of disclosure to a third party. 

“Plaintiffs do not allege that Google divulged the contents of any communication to a third party,” the judge wrote. “Rather, plaintiffs allege that Google divulged information to itself.”

Koh is also presiding over a case against Google where a class of Chrome users said they were misled by the company into believing that browsing in incognito mode would protect them from the company’s data collection tactics. 

Google attempted to have that case tossed as well, using many of the same legal arguments, but to no avail. 

Google must face both cases, which will not head to the discovery process unless the parties opt to settle. Many companies prefer to settle with plaintiffs rather than subject their internal documents to discovery, but others prefer to fight the case all the way to trial. 

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