428 F.Supp.3d 185
N.D. Cal.2019Background
- Plaintiffs brought a putative class action alleging Google tracked and stored users' geolocation data despite representations that turning off the "Location History" setting would prevent location storage.
- The complaint distinguishes two settings: Location History (opt-in; users alleged they thought turning it off stopped storage) and Web & App Activity (on by default; stores activity when Google features are used).
- Plaintiffs alleged deception: Google’s representations led users to believe disabling Location History prevented storage, but Google continued to retain location data generated while users used Google-controlled features.
- Procedural posture: Google moved to dismiss; the court considered judicial‑noticeable web materials and support pages; briefing and oral argument were held.
- Rulings: the court granted judicial notice of several public materials; it dismissed the CIPA claim with prejudice and dismissed the California constitutional and common‑law intrusion claims without prejudice, allowing limited amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Consent to collection/storage | Plaintiffs allege disabling Location History revoked consent to storage; they only consented to transient use while apps were open. | Google says Privacy Policy and Terms informed users location may be collected and users consented, including via use of Google services. | Court: factual dispute exists at pleading stage; plaintiffs plausibly pleaded they did not consent to storage, so consent defense does not defeat the complaint now. |
| Applicability of CIPA (§637.7) | Google’s software/hardware and users' phones functioned as electronic tracking devices revealing location/movement; storage of data falls within CIPA’s protection. | Google contends CIPA targets physical tracking devices attached to vehicles and unconsented tracking, not software or storage; thus CIPA does not reach the alleged conduct. | Court: CIPA does not cover the storage-only theory and does not reach software; CIPA claim dismissed with prejudice. |
| "Electronic tracking device" / "attach" / "other moveable things" interpretation | Plaintiffs argue phones/components or Google’s actions amounted to attaching tracking devices to vehicles/other moveable things. | Google argues (and court relied on precedent) that software or phone components are not CIPA "devices," and "attach" requires placing/joining a device to a vehicle; "other moveable things" is limited by context. | Court: rejected plaintiffs' expansive readings—"attach" requires affirmative placement and "other moveable things" is not unlimited; plaintiffs failed to plead attachment. |
| California constitutional and intrusion (informational/autonomy) claims | Plaintiffs assert informational and autonomy privacy interests because stored location history can reveal sensitive activities and intimate details. | Google argues alleged collection occurred only when Google services were used (not continuous), allegations are conclusory/speculative and fail to show legally protected privacy interests or a serious invasion. | Court: Plaintiffs failed to plead sufficient particularized facts to show a legally protected privacy interest under Hill; these claims dismissed without prejudice (leave to amend granted). |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: factual matter must plausibly show liability)
- Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988 (9th Cir. 2018) (limits on considering materials outside the pleadings; incorporation-by-reference and judicial notice principles)
- Lee v. City of L.A., 250 F.3d 668 (9th Cir. 2001) (courts generally may not consider extra-pleading material on Rule 12(b)(6))
- Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) (at motion to dismiss, plaintiff’s plausible alternative explanations control)
- In re Pharmatrak, Inc., 329 F.3d 9 (1st Cir. 2003) (consent may be limited to partial/interception of communications)
- Opperman v. Path, Inc., 205 F. Supp. 3d 1064 (N.D. Cal. 2016) (effective consent defeats reasonable expectation of privacy)
- Hill v. NCAA, 865 P.2d 633 (Cal. 1994) (framework for informational and autonomy privacy under California Constitution)
- Carpenter v. United States, 138 S. Ct. 2206 (2018) (Fourth Amendment protection for comprehensive historical cell-site location records)
- United States v. Jones, 565 U.S. 400 (2012) (GPS monitoring and societal expectations of privacy)
- In re Yahoo Mail Litig., 7 F. Supp. 3d 1016 (N.D. Cal.) (California constitutional privacy claims face a high bar)