Google Cites Apple Ruling in Reply to Support Dismissal of Privacy Suit

Plaintiffs fail to “meet their burden” of establishing that applying California law would thwart any fundamental policy of either New York or Minnesota, said Google Wednesday in a reply (docket 4:22-cv-05652) in support of its motion to dismiss a privacy lawsuit related to YouTube and Google Play video rental policies (see 2303300063).

Google cited a March ruling in a similar case, Baptiste v. Apple, in which U.S. District Court Judge Haywood Gilliam rejected (docket 22-cv-02888) in Northern California federal court “each of the arguments” plaintiffs made in a private right of action claim over the long-term retention of consumers’ video purchase or rental information under the New York Video Consumer Protection Act (NYVCPA) and the Minnesota Video Privacy Law (MVPL). The court based its decision not only on the text, structure and legislative history of the statutes but also on “a chorus of federal appellate decisions rejecting the same claim,” Google said.

Plaintiffs' amended January complaint (see 2301300036) is an amalgamation of three similarly structured class actions, by plaintiff Burke Minahan in Oakland, Moshe Torczyner in San Jose and David Landfair and Samuel Gershman in San Jose, alleging Google retains its video-viewing records “indefinitely,” in “direct contravention” of the protections afforded to consumers in Minnesota and New York.

The Minnesota plaintiffs “concede that they suffered no harm as a result of Google’s collection of their rental information, making their strained interpretation of the statute irrelevant,” said Google’s reply. But even if they could show that a private right of action exists for retention of personal information under the NYVCPA and MVPL, they have not adequately stated a claim, Google said. “They merely repeat their allegations that Google has no use for the rental information” after the transaction is complete, it said, but they don’t allege “that completing a transaction is the only reason Google collects information,” it said.

Plaintiffs don’t dispute that they are bound by terms of service for Google and YouTube, which include California choice-of-law clauses, said the reply, and they don’t establish that application of California law would thwart Minnesota or New York policy. “Nor do they show that New York and Minnesota have any greater interest in resolving this dispute than does California," the reply said. The “California law governs and would be dispositive even if” plaintiffs could show a right of action exists, it said.

Plaintiffs’ interpretation of statutes “would lead to harsher punishment for extended retention of information than for actual disclosure,” said the reply. It would impose “strict liability” on providers that retain information “for a moment longer than necessary,” Google said, “while imposing liability on disclosure only if it was knowing -- but not negligent or reckless.” That would do nothing to prevent negligent disclosure of information “within the (indefinite) time the business legitimately possesses the information,” nor provide a remedy if a disclosure occurs, it said.