Tech giant denied summary judgment in private browsing lawsuit

Courts Privacy, Cyber Risk & Data Security Consumer Protection CIPA Wiretap Act California Data Collection / Aggregation

On August 7, the U.S. District Court for the Northern District of California entered an order denying a multinational technology company’s motion for summary judgment on claims that the company invaded consumers’ privacy by tracking the consumers’ browsing history in the company’s private browsing mode. After reviewing the company’s disclosed general terms of service and privacy notices and disclosures, the court found that the company never explicitly told users that it would be collecting their data while browsing in private mode.  Without evidence that the company explicitly told users of this practice, the court concluded that it could not “find as a matter of law that users explicitly consented to the at-issue data collection,” and therefore, could not grant the company’s motion for summary judgment.

Plaintiffs, who are account holders (Class 1 for Incognito users and Class 2 for users of other private browsing modes), brought a class action suit against the company for the “surreptitious interception and collection of personal and sensitive user data” while the users were in a “private browsing mode.” Along with invasion of privacy, intrusion upon seclusion, and breach of contract, plaintiffs asserted violations of (i) the Federal Wiretap Act; (ii) The California Invasion of Privacy Act; (iii) Comprehensive Data Access and Fraud Act; and (iv) California’s Unfair Competition Law.

The court previously denied the defendant’s two motions to dismiss.