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Google Seeks Dismissal of COVID-19 Exposure Notification System Lawsuit

A rendition of amicroscopic coronavirus.

Coronavirus. COVID-19. 3D Render

Google asked the San Jose, California court presiding over a data privacy lawsuit to nix the case, arguing that the plaintiffs lack constitutional standing and that the operative complaint failed to state a claim upon which relief can be granted. Wednesday’s motion to dismiss claimed that the complaint is premised on the hypothetical dispersal of personally identifying information (PII), but no actual injury.

The filing explained that Google LLC and Apple Inc. teamed up to help public health officials track the spread of the COVID-19 virus. According to the motion, the so-called Exposure Notification System (EN System) was developed with robust privacy protections in place. In addition, millions of users and dozens of health authorities around the globe utilized the free technology, Google said, remarking however, that “no good deed goes unpunished.”

The class action Google now seeks to dismiss with prejudice was filed in April 2021 and amended in July. The complaint reportedly requests relief from public disclosure of private facts; intrusion upon seclusion; violation of Article I, Section 1 of the California Constitution; and violation of the Confidentiality of Medical Information Act. 

The plaintiffs’ claims “hinge on an entirely hypothetical theory that unrelated apps engaged in an increasingly remote and malicious series of steps to attempt to learn something from crash-reporting logs,” the motion said.

In support of its argument for lack of standing, Google contended that the plaintiffs neither allege imminent injury nor that they have already experienced injury, and instead rely on several unfounded assumptions. “Plaintiffs’ allegations relate only to Google’s practices generally, and the allegations that third parties could potentially piece together EN System data with PII from other apps or device manufacturers are speculative,” the motion explained.

As for failure to state a claim, Google argued that the amended complaint “adds many words but still lacks factual allegations showing that an individual’s use of the EN System was ever used to identify an individual and their COVID-19 test result, and the explanations for how that might be possible are convoluted and theoretical.” The defendant further asserted that amendment would be futile because the plaintiffs cannot plead facts that would withstand Federal Rules of Civil Procedure 12(b)(1) or 12(b)(6) scrutiny.

The motion hearing is scheduled for October 27. The plaintiffs are represented by Lieff Cabraser Heimann & Bernstein and Google by Willkie Farr & Gallagher LLP.

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