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3rd Cir. Revives Class Action Over Google's Cookie Tracking

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By Casey C. Sullivan, Esq. on November 23, 2015 6:00 AM

An Internet privacy class action against Google was revived by the Third Circuit recently. The class action began after it was revealed that Google was circumventing cookie blockers, the browser features that prevent advertisers and other third parties from tracking Internet users.

The class action was originally dismissed on summary judgment, but the Third Circuit found that Google's actions, as alleged, "highly offensive," deceitful, and possibly in violation of California privacy law.

A Real Cookie Monster

In computer speak, cookies are small files stored on a user's computer that transfer data between a client and a website. They are, for example, what allows your browser to remember your Facebook user name. They're also why you see the same ads over and over again. Advertising companies' cookies allow them to track users across any website that their ads appear on. Since Google Ads are pretty much everywhere, cookie tracking could create a pretty detailed profile of your individual Internet habits. Privacy-minded Internet users, however, can simply turn on their browser's built-in cookie blocker and, voila, no more cookie tracking.

Google is accused of circumventing that blocking in two browsers, Internet Explorer and Safari, and lying about it all the time. Google's Privacy Policy, for example, explains that "you can reset your browser to refuse all cookies" and even assuring users that, in Safari in particular, cookies could be blocked. Despite those assurances, Google was actively exploiting loopholes in those blockers to track users, according to research by a Stanford grad student.

Success on Standing, Failure on Federal Laws

Once that report of Google's cookie blocker blocking was released, many users filed lawsuits, 24 of which were consolidated as a putative class action. (Google settled suits by the FTC and 38 state attorneys general for $17 million, two years ago.) Those suits alleged a variety of wrongs, including violations of the federal Wiretap Act, the Computer Fraud and Abuse Act, and the Stored Communications Act, along with violations of California law.

The district court dismissed the complaint on standing grounds, but the Third Circuit reversed as to the California causes of action. The invasion of privacy alleged was personal and concrete enough to provide standing, the Third found.

However, the court found that Google did not violate any of the federal laws plaintiffs brought suit under. The Wiretap Act, for example, was not violated since Google was a party to the conversation. The individual users' browsers had to communicate with Google to see the ads, making Google a party to the communication, and under the act it is not unlawful to intercept communications that you are a party to.

California Privacy Law Saves the Class

But the California causes did stick. Under California privacy tort law, a defendant must intrude upon another's "reasonable expectation of privacy," in a manner "highly offensive to a reasonable person." The state constitution establishes a similar right to privacy. And here, with the facts as plaintiffs allege them, Google clearly violated those rights, according to the Third Circuit. "What is notable about this case," the court wrote, was that Google not only overroad plaintiff's cookie blockers, it simultaneously assured users that those blockers would be effective. It was behavior "characterized by deceit and disregard," the court found, and without justification.

With the suit revived, it's likely that Google and similar companies could see more litigation over privacy violations. MoPub, a mobile advertiser owned by Twitter, for example, was recently sued for using similar tracking measures.

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