In re Google Assistant Privacy Litigation, 5:19-cv-04286

Background

This consolidated putative class action challenges Google LLC and Alphabet Inc.’s Google Assistant, alleging it continuously listens for hotwords, sometimes triggers on misheard words (“false accepts”), and records private audio snippets.
Plaintiffs allege Google stores and uses those recordings to improve voice recognition and to target ads, and that human subcontractors review a small subset of recordings, per news reports and Google blog statements.
Five named plaintiffs (including minors/household members) assert a nationwide class and subclasses and bring 12 claims: Wiretap Act, Stored Communications Act (SCA), CIPA §§631/632, intrusion/invasion of privacy (common law and CA Constitution), breach of contract, express/implied warranty, Magnuson‑Moss, UCL, and declaratory relief.
Defendants moved to dismiss under Rule 12(b)(6); the court considered public news/blog posts and Google policies by judicial notice/incorporation.
The court GRANTED in part and DENIED in part the motion, frequently dismissing claims for failure to plead that plaintiffs’ own communications were intercepted or that a reasonable expectation of privacy existed, but allowing an SCA §2702(a) (unlawful disclosure to third parties) claim and certain UCL theories to proceed; most dismissals were with leave to amend.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Wiretap Act (§2511): intentional interception & oral communications	Google knew of false accepts, kept recordings and used them, so interceptions are intentional and plaintiffs had private oral communications intercepted	False accepts are inadvertent defects; plaintiffs failed to identify specific private oral communications or reasonable expectation of privacy	Dismissed for failure to plead interception of plaintiffs’ own oral communications; intentionality adequately pleaded at pleading stage; leave to amend granted
Wiretap Act: ordinary‑course‑of‑business exception	False accepts are not incidental to ordinary operation and are defects; recordings used after discovery of provenance	Recording/transmission is necessary to provide Assistant; exception shields Google	Court rejected dismissal on this ground—whether false accepts are incidental is factual and not resolvable on pleadings
SCA (§2701 access v. §2702 disclosure)	Google accessed/stored plaintiffs’ communications and disclosed them to subcontractors; consent not given for disclosures	User devices/Google servers are not unauthorized "facilities"; Google permitted to access its servers; Privacy Policy consents disclosures	§2701(a) unlawful access claim dismissed (no unauthorized facility pleaded). §2702(a) unlawful disclosure claim survives as to disclosures to subcontractors—Privacy Policy not sufficiently specific to establish consent at pleading stage
CIPA (§631 and §632)	§631/§632 prohibit unauthorized recording/eavesdropping of confidential communications; plaintiffs’ recordings fall within both statutes	§631 limited to wire/telephone connections; §632 requires confidential communications and lack of consent; plaintiffs failed to plead reasonable expectation of privacy	§631 claims dismissed (statutory scope / pleading defects); §632 dismissed for failure to allege confidential communications; intent adequately pleaded; leave to amend granted
Common law intrusion / CA constitutional privacy	Secret recording and disclosure of private home conversations (including minors) is highly offensive and invades informational and autonomy privacy	Conduct is routine commercial behavior and not sufficiently egregious as matter of law	Claims dismissed for failure to allege plaintiffs’ reasonable expectation of privacy; seriousness/offensiveness is factual and not resolved on pleadings; leave to amend granted
Breach of contract & warranties (Counts 7–10)	Google’s TOS/Privacy Policy and product FAQs promise not to share or to delete non‑hotword snippets; plaintiffs relied on those promises	Plaintiffs fail to identify specific contractual/warranty terms or damages; TOS disclaims implied warranties and limits remedies	Breach of contract and express/implied warranty claims dismissed for failure to plead specific breached terms or damages; implied warranty barred by conspicuous disclaimer (dismissed, leave to amend to plead unconscionability); Magnuson‑Moss claim dismissed with leave to amend
UCL (unlawful, unfair, fraudulent prongs)	Google’s conduct is unlawful (borrows SCA/Wiretap/CIPA/contracts), unfair, and fraudulent; plaintiffs suffered economic injury (overpayment and monetization of data)	Plaintiffs lack economic injury/standing; many predicate claims fail; no particulars for fraud	UCL claim survives only to the extent it’s premised on SCA §2702(a) disclosure and standing for purchasers (Kumandan, Spurr) was adequately pleaded; fraudulent and unfair prongs dismissed for pleading deficiencies; leave to amend granted
Declaratory relief	Plaintiffs seek declaratory judgment as to legality of practices	—	Declaratory judgment claim remains (not challenged)

Key Cases Cited

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility pleading standard)
Ashcroft v. Iqbal, 556 U.S. 662 (applying plausibility standard)
Theofel v. Farey‑Jones, 359 F.3d 1066 (9th Cir.) (SCA modeled on trespass; protects storage with third‑party service providers)
Noel v. Hall, 568 F.3d 743 (9th Cir.) (Wiretap Act disclosure/use liability requires antecedent unlawful interception)
Tavernetti v. Superior Court, 22 Cal.3d 187 (Cal.) (structure and clauses of Cal. Penal Code §631)
Kearney v. Salomon Smith Barney, 39 Cal.4th 95 (Cal.) (objective test for “confidential communication” / reasonable expectation of privacy under §632)
Cel‑Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163 (Cal.) (UCL prong distinctions and limits on the “unfair” prong)
In re Pharmatrak, Inc., 329 F.3d 9 (1st Cir.) (intent requirement under Wiretap Act — interception must be purposeful)
Shulman v. Group W Prods., Inc., 18 Cal.4th 200 (Cal.) (surreptitious recording can support intrusion claim)