A U.S. appeals court has ruled that Google must face a revived lawsuit from Google Chrome users who claim the company collected their personal information without permission, even after they chose not to synchronize their browsers with their Google accounts. The 9th U.S. Circuit Court of Appeals in San Francisco stated that the lower court judge, who had dismissed the proposed class action, should have determined whether reasonable Chrome users had consented to Google’s data collection while browsing online.
Tuesday’s unanimous 3-0 decision follows Google’s previous agreement to destroy billions of records as part of settling a lawsuit alleging that the company, a unit of Alphabet, tracked people who believed they were browsing privately, including in Chrome’s “Incognito” mode.
In response to the ruling, Google expressed its disagreement, stating, “We disagree with this ruling and are confident the facts of the case are on our side. Chrome Sync helps people use Chrome seamlessly across their different devices and has clear privacy controls.” Matthew Wessler, a lawyer for the plaintiffs, welcomed the decision and expressed anticipation for a trial.
The proposed class action includes Chrome users since July 27, 2016, who did not sync their browsers with their Google accounts. These users argue that Google should have respected Chrome’s privacy notice, which states that users “don’t need to provide any personal information to use Chrome” and that Google would not receive such information unless the “sync” function was activated.
The lower court judge had previously concluded that Google’s general privacy policy, which permits data collection, applied to the case because the company would have collected the plaintiffs’ information regardless of the browsers they used. However, Circuit Judge Milan Smith, in Tuesday’s decision, criticized this reasoning as misplaced. Smith wrote, “Here, Google had a general privacy disclosure yet promoted Chrome by suggesting that certain information would not be sent to Google unless a user turned on sync. A reasonable user would not necessarily understand that they were consenting to the data collection at issue.”
The appeals court has sent the case back to U.S. District Judge Yvonne Gonzalez Rogers in Oakland, California, who had dismissed it in December 2022. Google’s earlier settlement regarding Incognito mode allows users to sue the company individually for damages, and tens of thousands of users in California alone have since done so in that state’s courts.
The case is titled Calhoun et al v Google LLC, 9th U.S. Circuit Court of Appeals, No. 22-16993.
