Judge Denies Motion to Dismiss in Google ‘Private Browsing Mode’ Suit

In an order issued late last week, Judge Lucy H. Koh denied Google LLC’s motion to dismiss in a case alleging that the tech company unlawfully collects data from account holders while they are using the Google Chrome browser’s “private browsing mode.” After a remote hearing on Feb. 21, the court decided to permit the Wiretap Act, California Invasion of Privacy Act, California Computer Data Access and Fraud Act, invasion of privacy, and intrusion upon seclusion claims to proceed.

In June of last year, three Google account holders who used private browsing mode filed a class action suit alleging that they enable the mode to prevent others from finding out what they are viewing online. For example, the court noted, users often turn on the mode to visit “especially sensitive websites,” which could reveal dating history, sexual interests or orientation, political or religious views, travel plans, and private plans for the future (like the purchase of an engagement ring). The plaintiffs contended that they had a reasonable expectation that their private browsing communications would not be disseminated, yet Google did just that.

In its motion to dismiss the plaintiffs’ amended complaint, Google raised three primary arguments. The defendant first contended that the plaintiffs consented to Google’s receipt of the data, next, that each of the claims exceeded its statute of limitations, and finally that the plaintiffs failed to state their claims for various other reasons. 

The court turned to the arguments in the order presented, first finding that Google did not show that the plaintiffs consented because the tech company did not notify users that it would be engaging in the alleged data collection. In addition, the court reasoned as to the plaintiffs’ Wiretap Act claim, that “consent is not a defense because Google allegedly intercepted Plaintiffs’ communications for the purpose of violating other laws.”

The court also found that the applicable statutes of limitations were tolled by the fraudulent concealment doctrine because “Google’s representations could have led a reasonable user to conclude that Google was not collecting this data.” The court held that the plaintiffs had adequately alleged facts to support each of their five claims.

The plaintiffs are represented by Boies Schiller & Flexner LLP, and Google by Quinn Emanuel Urquhart & Sullivan LLP.