May Litigation Update: Two Google Cases Allowed To Proceed, TCPA Suffers a Blow, No Consent Wiretapping Still Illegal in CA

By Jennifer Oliver

Two Cases Accusing Google of Privacy Violations are Allowed to Proceed

On March 12, 2021, a Northern District of California court ruled that Google must face lawsuit accusing it of collecting data from users who are browsing the internet in “incognito mode,” violating California privacy laws.

Brown v. Google LLC, 20-3664 was filed in June 2020 and alleges that even when consumers turn off data collection in Chrome, their personal data is gathered by other Google tools, claiming “Google tracks and collects consumer browsing history and other web activity data no matter what safeguards consumers undertake to protect their data privacy. … Indeed, even when Google users launch a web browser with ‘private browsing mode’ activated (as Google recommends to users wishing to browse the web privately), Google nevertheless tracks the users’ browsing data and other identifying information.”

Google’s parent company Alphabet Inc. asked the court to dismiss the case, arguing that plaintiffs had consented to the company’s privacy policy.  In allowing the case to proceed, Judge Koh concluded that “Google did not notify users that Google engages in the alleged data collection while the user is in private browsing mode.”  Plaintiffs say they will seek at least $5,000 in damages per user for the alleged violations.

Similarly, on March 18 Judge Koh held that a proposed class action accusing Google of collecting personal data from Chrome browser users without permission, may move forward, but only certain claims may proceed.  Judge Koh found that the plaintiffs hadn’t adequately pled “unlawful interception” claims, but rejected Google’s argument that the remaining allegations should also be tossed because users consented to the collection of their data. 

Judge Koh allowed the remaining claims for violation of the California Invasion of Privacy Act, intrusion upon seclusion, breach of contract, breach of the implied covenant of good faith and fair dealing, statutory larceny, and violation of the California Unfair Competition Law to move forward. In finding that that the plaintiffs had adequately alleged d a reasonable expectation of privacy Judge Koh described the intrusion as “highly offensive,” in terms of ”the amount of data collected, the sensitivity of the data collected, and the nature of the data collection” as well as the “reasonable” assumption users could have drawn from Google’s representations it would not collect their data while the users weren’t synced with their Google accounts. The case is Calhoun v. Google, LLC, 20-cv-051460-LHK.

TCPA Plaintiffs Dealt a Blow by SCOTUS

Meanwhile on April 1, the Supreme Court issued a decision that will greatly impact Telephone Consumer Protection Act (TCPA) class action litigation.  The court has ruled that to qualify as an “automatic telephone dialing system”, a device must be able to either “store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator,” reversing and remanding the Ninth Circuit’s decision on this point.  The case is captioned Facebook Inc. v. Duguid et al.

Many hope that this decision will help resolve the circuit split on the definition of “Automatic Telephone Dialing Systems” and provide greater clarity for parties seeking to comply with the TCPA and avoid class litigation.

CA Prohibition On Secretly Recording Phone Calls Applies To Parties, Not Just Eavesdroppers

And finally, on April 1 the California Supreme Court ruled that California’s penal code Section 632.7, which makes it a crime to record or intercept a phone call “without the consent of all parties,” applies not only to nonparties but also those on the call from recording each other without consent.

The 2016 lawsuit that spurred this decision was filed by Jeremiah Smith, who claimed the loan provider LoanMe Inc. recorded him without his consent during an 18-second call in violation of Section 632.7.  The case is Smith v. LoanMe Inc., California Supreme Court (No. S260391).

Writing for the unanimous court, Chief Justice Cantil-Sakauye found that the statute should be read to mean that it prohibits both parties and nonparties from making non-consensual recordings, though it “conceivably could support the Court of Appeal’s interpretation as well.”

Jennifer Oliver is the Secretary of the CLA’s Privacy section and a partner at MoginRubin LLP where she specializes in antitrust and privacy matters.