United States: Court Grants Dismissal Of Wiretapping And Contract Claims In Putative Privacy Class Action Involving Google Privacy Settings

A California federal district court recently granted partial dismissal of privacy claims brought by several Google users in Rodriguez v. Google, LLC, No. 20-cv-5688 (N.D. Cal.).  The Rodriguez plaintiffs claimed that Google engaged in unlawful wiretapping under section 631 of the California Invasion of Privacy Act (“CIPA”) by collecting data from third-party apps after users turned off certain data tracking in their Google privacy settings; they also claimed that Google breached a unilateral contract they had formed by selecting those privacy settings.  The court disagreed, and dismissed these two claims without leave to amend.

In addressing the CIPA claim, the district court reiterated that section 631 claims for wiretapping require an interception by a third party during transmission.  Notwithstanding plaintiffs' repeated use of the word “intercepted,” the factual allegations suggested that Google's alleged copying of plaintiffs' data occurred before any transmission of data.  These allegations did not suffice to show plausible interception of plaintiffs' data while in transit.

The district court then rejected plaintiffs' breach-of-contract claims on three grounds.  First, the court found that Google had not engaged in a bargained-for act or forbearance because Google had not requested that users select certain privacy settings.  Second, the court concluded that plaintiffs had no reasonable expectation that they were forming a contract with Google by changing settings; the only contract they created occurred when they agreed to Google's terms of service.  Third, the court rejected plaintiffs' quasi-contract claim because the subject matter of the dispute (privacy) was covered by the terms of service.

Despite Google's partial victory, plaintiffs' case remains ongoing, with two California common law privacy claims and a Computer Data Access and Fraud Act claim proceeding past the pleading stage.

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