Metropolitan News-Enterprise


Wednesday, March 6, 2024


Page 3


Ninth Circuit:

Putative Class Action Against Google Properly Dismissed

Judges Say Privacy Policy Warns That Data on Users of Android Smartphones Is Collected Via Third-Party Apps


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday affirmed the dismissal of a putative class action against Google based on its collection of data on users of Android smartphones via third party apps, holding that fair warning is provided of that activity in its Privacy Policy.

That policy spells out that Google culls information on users’ activity including “[a]ctivity on third party sites and apps that use our services.”

Plaintiffs Marie Hammerling and Kay Jackson alleged fraud in claims under California’s Civil Code §1709—which says that “One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers”—and the Unfair Competition Law and Consumer Legal Remedies Act.

Memorandum Opinion

A memorandum opinion—signed by Judges Bridget Shelton Bade, Eric D. Miller, and Lawrence VanDyke—says:

“Read in the context of the Policy as a whole, the phrase ‘apps that use [Google’s] services’ unambiguously discloses Google’s collection of user activity data in third-party apps.”

The judges acknowledged that, counterintuitively, “apps” could refer to all apps because “[t]he Policy’s broad definition of ‘service’ clearly includes the Android operating system, which all apps on an Android phone use.” They said: “But where a contract expressly defines a term, we cannot reject that definition simply because it may deviate from our expectations.”

Non-Android Devices

They added:

“While it is true that every third-party app on an Android device uses Google’s services because all such apps depend on the Android operating system, that is not necessarily true for every third-party app on other, non-Android devices. The Policy provides many other examples of Google services—including Maps, YouTube, and Chrome—that might just as easily be used, for example, on an iPhone or a laptop running Windows. Thus, the phrase ‘apps that use [Google’s] services’ both (1) provides an important limitation on Google’s ability to collect data and (2) unambiguously applies to all third-party apps that use Android.”

Senior District Court Judge Charles R. Breyer of the Northern District of California also correctly dismissed a contract claim—based on the allegation that collecting data breached a contract between Google and its users—because “the contract expressly contemplates such collection” in light of the wording of the privacy policy, the judges declared. An invasion-of-privacy claim fails for the same reason, they said, holding that “Plaintiffs have no reasonable expectation of privacy” in their data.

It is added in a footnote:

“That leaves only Plaintiffs’ claims for unjust enrichment and for injunctive and declaratory relief. Assuming an independent claim for unjust enrichment exists under California law, it cannot lie where the defendant has not committed some predicate actionable wrong….Here, where Plaintiffs have identified no actionable wrong, their derivative claim for unjust enrichment claim fails, as do their claims for injunctive and declaratory relief.” 

The case is Hammerling v. Google, LLC, 22-17024.


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