9th Circuit: 'Browser agnosticism' irrelevant in Google privacy case

Google Chrome users who sued the company claiming privacy, breach of contract and other violations will be able to pursue a class action after a 9th U.S. Circuit Court of Appeals panel reversed a lower court ruling that granted summary judgment.

The lawsuit involves claims that the company violated its promise that any personal information users provide while using the Chrome browser would not be shared with the company unless they turned on "sync," an optional feature to autofill addresses. The plaintiffs said they chose not to sync their browsers with their Google accounts.

U.S. District Judge Yvonne Gonzalez Rogers of Oakland, an appointee of President Barack Obama, dismissed the class action after holding a 7 1/2 hour evidentiary hearing that included expert testimony. She wrote the data was not specific to Chrome but "browser agnostic."

But 9th Circuit Judge Milan D. Smith, an appointee of President George W. Bush writing Tuesday for a three-judge panel, said Gonzalez Rogers used the wrong standard and remanded the case for trial. Calhoun et al. v. Google LLC, 2024 DJDAR 7923 (9th Circ., filed Dec. 27, 2022).

"By focusing on 'browser agnosticism' instead of conducting the reasonable person inquiry, the district court failed to apply the correct standard, despite its recitation of it," he wrote. "Viewing this in the light most favorable to Plaintiffs, browser agnosticism is irrelevant because nothing in Google's disclosures is tied to what other browsers do."

Smith added that the proper standard is what a reasonable user would understand when making the agreement, not a legal sophisticate.

"Whether a 'reasonable' user of Google's computer software at issue in this case consented to a particular data collection practice is not to be determined by attributing to that user the skill of an experienced business lawyer or someone who is able to easily ferret through a labyrinth of legal jargon to understand what he or she is consenting to," he wrote.

Matthew W.H. Wessler, a partner with Gupta Wessler LLP who represents the plaintiffs, hailed the decision in a statement Wednesday.

"We are pleased with the 9th Circuit's common-sense decision reversing the district court's grant of summary judgment in favor of Google and look forward to taking this case on behalf of Chrome users to trial," he wrote in an email.

A representative of Alphabet Inc., the Mountain View technology giant that is Google LLC's parent company, expressed disappointment on Wednesday with the appellate court ruling but confidence it would win in the end.

"We disagree with this ruling and are confident the facts of the case are on our side," Google spokesman Jose Castañeda wrote. "Chrome Sync helps people use Chrome seamlessly across their different devices and has clear privacy controls."

Andrew H. Schapiro, a partner with Quinn Emanuel Urquhart & Sullivan LLP, represented Google during oral arguments in July. Concurring in Smith's decision were 9th Circuit judges Mark J. Bennett, an appointee of President Donald Trump, and Anthony D. Johnstone, an appointee of President Joe Biden.

"Because applying the correct standard reveals disputes of material fact regarding whether 'reasonable' users of Google's product consented to Google's data collection practices, the issue of consent -- assuming a plaintiff class is certified -- is remanded to the district court for trial," Smith wrote.