Google to Face Trial in Privacy On/Off Switch Class Action (1)

Google LLC lost its final bid to escape a sweeping privacy class action alleging the tech giant covertly collects consumer data even after they turn an “off switch” that purportedly stops the tracking.

Judge Richard Seeborg on Tuesday ruled that Google must face a federal jury, rejecting the company’s arguments that Google users are aware that turning the off switch doesn’t stop all tracking and that “Google’s basic record-keeping practices harms no one.”

A jury trial is tentatively set for Aug. 18 in San Francisco.

Seeborg, writing for the US District Court for the Northern District of California, said that even though Google provides a number of long and detailed privacy policy disclosures to users, that doesn’t mean they agreed to the tracking.

“From the perspective of a reasonable user, it is unclear Plaintiffs were consenting to the data collection at issue,” Seeborg said.

He pointed to evidence of internal Google communications suggesting that “Google knew it was being ‘intentionally vague’ about the technical distinction between data collected within a Google account and that which is collected outside of it because the truth ‘could sound alarming to users.’”

Google spokesperson José Castañeda said in a statement that the claims in the suit are “patently false.” “Privacy controls have long been built into our service and the allegations here are a deliberate attempt to mischaracterize the way our products work,” the statement said.

The lawsuit filed in 2020 alleged that Google falsely told users that it would stop saving their data histories if they turn off a feature called “Web App & Activity.” Instead, the company continues to intercept consumers’ personal browsing histories.

The complaint alleged violations of privacy under the California Constitution and the Comprehensive Computer Data Access and Fraud Act.

The case is one of a number of California privacy class actions against the search giant over its data collection practices. The company last year settled a class action over privacy problems with Chrome’s “Incognito” browser mode, and the Ninth Circuit last summer revived a case involving data tracking of users who don’t “sync” their Google account with Chrome.

Boies Schiller Flexner LLP, Susman Godfrey LLP, and Morgan & Morgan represent the plaintiffs and the classes. Willkie Farr & Gallagher LLP represents Google.

The case is Rodriguez v. Google LLC, N.D. Cal., No. 3:20-cv-04688, 1/7/25.