• by Wendy Davis  @wendyndavis, November 16, 2015

In a blow to Google, a federal appellate court has revived a lawsuit accusing the company of violating Safari users' privacy by circumventing their no-tracking settings.

"A reasonable jury could conclude that Google’s alleged practices constitute the serious invasion of privacy contemplated by California law," the 3rd Circuit Court of Appeals wrote in an opinion issued last week.

The decision restores a privacy lawsuit against Google filed in May of 2012, several months after Stanford researcher Jonathan Mayer, who published a report stating that Google -- along with WPPs Media Innovation Group, PointRoll and Vibrant Media -- circumvented Safari's privacy settings and then set tracking cookies. After allegedly doing so, all of the companies were able to serve ads to Web users based on their Internet activity. None of the companies were accused of linking cookie-based data to users' names or other personally identifiable information.

"What is notable about this case is how Google accomplished its tracking. Allegedly, this was by overriding the plaintiffs’ cookie blockers, while concurrently announcing in its Privacy Policy that internet users could 'reset your browser to refuse all cookies,'" the appellate judges wrote. "Google further assured Safari users specifically that their cookie blockers meant that using Google’s in-house prophylactic would be extraneous."

Google, Vibrant Media and PointRoll confirmed Mayer's report when it came out, and said they had stopped tracking Safari users or would soon do so. Google agreed to pay $22.5 million to settle Federal Trade Commission charges stemming from the workaround.

PointRoll settled the allegations, but the other companies fought the case. U.S. District Court Judge Sue Robinson in Delaware dismissed the lawsuit in 2013 on the grounds that the consumers hadn't shown they suffered any tangible harm.

The 3rd Circuit only revived the lawsuit against Google, and not Vibrant Media or WPP's Media Innovation Group.

The appellate panel said the consumers could only go forward on the theory that Google violated general privacy principles that are set out in California's constitution, or have been developed by courts. But the panel refused to revive claims that Google and the other companies ran afoul of specific federal and state laws, including the federal wiretap law and California's invasion of privacy statute.