In re: Google Location History Litigation

Background

The named plaintiffs brought a proposed class action against Google LLC under California law. They alleged that Google tracked and stored users’ geolocation and other personal data through applications such as Google Maps and Chrome, even after users turned off the Location History setting. According to the complaint, Google represented that turning off Location History meant that users’ locations would no longer be stored. The plaintiffs alleged claims under the California Invasion of Privacy Act, Article I, Section 1 of the California Constitution, and the common-law tort of intrusion upon seclusion.

Judicial Notice

The court granted Google’s requests for judicial notice of the identified publicly available websites, legislative-history materials, and other exhibits. The court explained that judicial notice of the website exhibit established that the material was publicly available and that Google had made certain disclosures; it did not establish the truth of every statement in the exhibit.

Motion-to-Dismiss Standard and Consent

The court applied the standard for a Rule 12(b)(6) motion, which asks whether the complaint contains enough factual matter to state a legally plausible claim. Google argued that its Terms of Service and Privacy Policies established users’ consent to location collection and storage. The court rejected dismissal on that basis at this stage. It held that a reasonable user could believe that turning off Location History prevented Google from collecting and storing geolocation data, and that consent could be limited to temporary use of location information for services such as directions. Because the complaint plausibly alleged that the plaintiffs did not consent to indefinite storage, the court held that the consent issue could not be resolved on a motion to dismiss.

California Invasion of Privacy Act Claim

The court dismissed the California Invasion of Privacy Act claim. First, it held that the plaintiffs’ allegations focused on the collection and storage of geolocation data, while California Penal Code section 637.7 addresses the use of an electronic tracking device to determine a person’s location or movement and does not apply to the storage of geolocation data. Second, the court held that Google’s software applications were not “devices” within the statute’s definition. The plaintiffs’ alternative theory—that GPS hardware, cellular radios, or Wi-Fi chips in mobile devices were electronic tracking devices—was not supported by sufficient factual allegations.

The court also rejected the plaintiffs’ interpretation of the statutory requirement that a tracking device be attached to a vehicle or other movable thing. It held that “attach” requires the wrongdoer to place, put, or join the device to a movable thing, and that “other movable things” does not include people, their belts, or their smartphones. The court granted the motion to dismiss the California Invasion of Privacy Act claim with prejudice because amendment would be futile.

Constitutional and Common-Law Privacy Claims

The court considered the California constitutional privacy claim and the intrusion-upon-seclusion claim together. It held that the plaintiffs did not plead enough specific facts to establish a legally protected privacy interest. The court noted that the alleged data collection occurred when users used Google services, rather than through continuous tracking of all their movements. It also found the allegations too conclusory and speculative to show what specific locations were collected, how often the information was accessed, or whether the information was sensitive and confidential.

The court declined to extend California’s cases involving bodily autonomy to the alleged collection and storage of location data. Because the plaintiffs failed to adequately plead a legally protected privacy interest, the court did not reach the other elements of the privacy claims. It granted the motion to dismiss those claims without prejudice and allowed amendment because it did not find amendment futile.

Disposition

The court granted Google’s motion to dismiss with prejudice as to the California Invasion of Privacy Act claim and without prejudice as to the California constitutional and common-law privacy claims. The plaintiffs could file an amended complaint by January 23, 2020, but could not add new causes of action or parties without a stipulation or court order. The court warned that failure to correct the identified deficiencies would result in dismissal with prejudice.