US federal judge dismisses breach of contract claims in privacy class action against Google
US federal judge dismisses breach of contract claims in privacy class action against Google

Chief US District Judge Richard Seeborg for the Northern District of California dismissed two claims Tuesday from a proposed class action against Google, ruling that a promise to avoid collecting user data did not amount to a contract.

The case, Anibal Rodriguez, et al. v. Google LLC, revolves around Google’s privacy framework, specifically the “Web & App Activity” (WAA) button feature which allows a user to control whether data related to her activity on Google sites, apps and services can be saved in her Google account. The plaintiffs are suing Google for continuing to collect their data despite their turning off the WAA button.

The plaintiffs’ first claim was that Google violated § 631 of the California Invasion of Privacy Act, which penalizes tapping or learning the contents of a communication while it is in transit. There is a distinction between the higher standard of simultaneity required by § 631 and mere “recording followed by transmission”. While the plaintiffs had previously averred that Google recorded and then transmitted their data (amounting to a claim for improper recordings under § 632 instead), they now modified their claim to one under § 631 but failed to prove how the alleged processes such as “real-time ad bidding” were simultaneous.

The second claim was that by turning off the WAA button under Google’s privacy controls, a user creates a unilateral contract with Google, binding it not to collect users’ data. The judge held while the WAA button might create an expectation among users that data will not be collected, such expectation is insufficient to give rise to a contract.

Even though the user is performing a certain act, this act is not “bargained for” by Google, since Google does not request, or even suggest, the turning off of this button. Further, both unilateral and bilateral contracts require mutual obligations and only differ in their mode of acceptance. Since Google was not offering anything “in exchange” for turning off the WAA button, the WAA page cannot be the source of an additional contract between the user and Google distinct from the Terms of Service.

The judge contrasted this with an offer by Google where users in its Local Guides program could carry out activities to reach “Level 4” (which Google is “bargaining for”) to avail of one TB of free storage “in exchange”, thus forming a contract.

The judge denied the plaintiffs further opportunities to amend their claims, given their multiple unsuccessful amendments so far.