All Claims vs. Google ‘Should Proceed to Trial,’ Say Private Browsing Plaintiffs

Google’s March 21 motion for summary judgment ignores the “damning evidence” from its own employees that the company’s explanations of its practices for collecting data from users who were in private browsing mode border on the untruthful, said the plaintiffs’ heavily redacted opposition to the motion Wednesday (docket 4:20-cv-03664) in U.S. District Court for Northern California in Oakland.

Class-action plaintiffs Chasom Brown, William Byatt, Jeremy Davis, Christopher Castillo and Monique Trujillo alleged in their fourth amended complaint March 2 that Google engages in “surreptitious interception and collection” of personal and sensitive user data while users are in a private browsing mode, and does this without “disclosure or consent.” Google's motion for summary judgment said the plaintiffs’ entire case is based on the “simple premise” that Google promised that when users were in private browsing mode, Google wouldn’t collect and use that private browsing data. Yet nearly three years of “extensive discovery” confirmed Google “never made any such promise,” said the motion.

Google argues it’s entitled to summary judgment on all claims because its disclosures make clear that Google collects and uses private browsing data, said the plaintiffs’ opposition. To win, Google must prove that no reasonable jury could find otherwise, it said. But Google can’t begin “to bear the weight of that heavy burden,” it said.

The court “has twice rejected Google’s principal argument,” raised here for the third time, that Google’s privacy policy expressly disclosed the challenged data collection and use, said the plaintiffs’ opposition. The prior orders “were right,” as the plaintiffs “have uncovered scores of evidence where Google’s own employees denounced Google’s collection and use of private browsing data,” it said. The employees thus agree with the plaintiffs’ and the prior orders’ “interpretation of Google’s disclosures,” it said.

Google, “backed into a corner,” resorts to “rewriting the law,” arguing its misappropriation of private browsing data is excused because the data is supposedly unidentified, said the opposition. “There are many problems with this argument,” it said. First, it’s not the law,” it said. The right to privacy isn't limited only to identified data, it said. But second, even if it were, a jury could find that this data is identifying, particularly where Google’s own motion concedes that the data is keyed by unique identifiers, it said.

The court’s earlier rulings, and the evidence revealed since then through years of “tireless” fact and expert discovery, “raise at least a triable issue of fact” on Google’s claim that its contract with users expressly disclosed the “at-issue conduct,” said the opposition. Summary judgment is “unwarranted” because a reasonable jury could find that Google’s privacy policy provisions don’t obtain “knowing consent” for these practices, it said. For these reasons, “all claims should proceed to trial in November,” it said.