• by Wendy Davis  @wendyndavis, December 19, 2023

A Texas-led coalition of 19 states on Monday urged a federal appeals court to revive a lawsuit alleging that Google violated Chrome users' privacy by allegedly harvesting data about them, including information about their web browsing activity.

Earlier this year, U.S. District Court Judge Yvonne Gonzalez Rogers in the Northern District of California dismissed the claims, ruling that Chrome users consented to Google's alleged practices, which she said were disclosed through a combination of company privacy policies.

The users are appealing that ruling to the 9th Circuit Court of Appeals, arguing that Google's Chrome-specific privacy policy limited the browser's ability to transmit personal information back to Google. A reasonable user “would never have understood that Chrome sends users’ personal information to Google if they did not choose to 'sync' their Chrome browser,” they argued in a brief made public late last week.

Now 19 states, led by frequent Big Tech critic Texas Attorney General Ken Paxton, are backing the appeal, arguing in a friend-of-the-court brief that a “reasonable user” wouldn't have thought Google's policies allowed the company to harvest as much data as it allegedly did.

Texas and the other states say Rogers wrongly interpreted Google's policies “through the lens of a sophisticated party with technical expertise and access to detailed information about the inner workings of Chrome and other web browsers.”

The attorneys general add that this dispute is “just one front in a larger conflict in which federal and state governments, along with private plaintiffs, are fighting to rein in alleged abuses by tech giants like Google.”

The battle dates to 2020, when Patrick Calhoun and three others claimed in a class-action complaint that Google had violated Chrome's privacy policy, the federal wiretap law, and various California laws.

Calhoun and the other plaintiffs specifically alleged that Google failed to honor the following statement in Chrome's privacy policy: “The personal information that Chrome stores won’t be sent to Google unless you choose to store that data in your Google account by turning on sync.”

They argued that Google violated that provision by collecting data regardless of whether they had sync-ed their accounts. But Google countered that its various privacy policies, taken together, informed Chrome users about data collection.

Rogers agreed with Google, writing that statements in Chrome's privacy policy “cannot be read in a vacuum or cherry-picked.”

Earlier in the proceedings, U.S. Circuit Court Judge Lucy Koh rejected Google's argument regarding consent, writing: “Google’s representations might have led a reasonable user to believe that Google did not collect his or her personal information when the user was not synced.”

But Rogers said that earlier decision came before Google presented all of its evidence.

“Judge Koh’s ruling did not consider all the disclosures that Google proffers on summary judgment,” Rogers wrote.

Google is expected to respond to the arguments in February.