A US appeals court said Google must face a retrial of a lawsuit by Google Chrome users who said the company collected their personal information without permission even though they had chosen not to sync their browser with their Google accounts.
The San Francisco-based 9th U.S. Circuit Court of Appeals said the lower court judge who dismissed the proposed class action should have assessed whether reasonable Chrome users had given Google permission to collect their data while browsing online.
Tuesday’s 3-0 decision follows Google’s agreement last year to destroy billions of records to settle a lawsuit that claimed the Alphabet unit tracks people who think they are browsing privately, including through Chrome’s “incognito” mode.
Neither Google nor its lawyers immediately responded to requests for comment.
Plaintiffs’ attorney Matthew Wessler said he was pleased with the decision and looking forward to the trial.
The proposed class includes Chrome users since July 27, 2016 who have not synced their browser with their Google accounts.
He said Google should have respected Chrome’s privacy notice, which stated that users “are not required to provide any personal information to use Chrome” and that Google would not receive such information unless they turned on the “sync” function.
The lower court judge concluded that Google’s general privacy policy allowing the data collection applied, because the Mountain View, California-based company would have collected the plaintiffs’ information regardless of which browser they used.
In Tuesday’s ruling, Circuit Judge Milan Smith said that focus is misplaced.
“Here, Google had a general privacy disclosure, yet in promoting Chrome it suggested that certain information would not be sent to Google unless the user turned on sync,” Smith wrote. “A reasonable user would not necessarily understand that they were consenting to data collection.”
The appeals court sent the case back to US District Judge Yvonne Gonzalez Rogers in Oakland, California, who would dismiss it in December 2022.
Under Google’s Incognito agreement, users can individually sue the company for damages. In California alone, thousands of users have already done so in that state’s courts.
The case is Calhoun et al v. Google LLC, 9th US Circuit Court of Appeals, No. 22-16993.
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