Last week, the Third Circuit revived a multi-district privacy lawsuit against Google, finding that the trial court erred in dismissing the plaintiffs’ privacy claims under California state law. The case centers around the plaintiffs’ allegations that Google violated state and federal law by circumventing the Safari browser’s default “cookie blocker” settings to track users’ online activity while publicly professing to respect users’ Safari browser settings. While the Third Circuit affirmed the trial court’s dismissal of federal claims under the Wiretap Act, the Stored Communications Act (SCA), and the Computer Fraud and Abuse Act (CFAA), the court vacated the district court’s dismissal of the plaintiffs’ claims under California tort law and the California constitution’s right to privacy.
The plaintiffs’ claims originated from a 2012 Wall Street Journal article describing a researcher’s findings that Google, despite the Safari browser’s default settings intended to blocking tracking cookies, had utilized methods to circumvent these settings and track Safari users’ Internet browsing habits via tracking cookies. At the same time, the plaintiffs alleged, Google made a series of public statements, including statements within its privacy policy, indicating that it respected the Safari browser’s cookie-blocking settings. Google subsequently entered into settlements with the Department of Justice and a consortium of state attorneys general over its practices. Twenty-four plaintiffs also filed putative class action suits against Google and third-party advertisers, alleging violations of federal and state privacy law. The suits were combined into the instant litigation in the District of Delaware, and in October 2013, the district court dismissed the complaint in its entirety, finding that the plaintiffs failed to state a claim.