N.D.Cal.: Google location history case is dismissed without prejudice

The Google location history case is dismissed without prejudice with leave to amend. Plaintiffs don’t show it is an invasion of privacy just because Google tracked only when using Google services. Carpenter and Jones are rejected as binding authority. In re Google Location History Litig., 2019 U.S. Dist. LEXIS 219258 (N.D. Cal. Dec. 19, 2019):

Plaintiffs’ information privacy rights allegation is also rejected. Plaintiffs contend that Defendant’s surreptitious collection and storage of comprehensive and highly sensitive location data violates their information privacy rights. Opp. at 15. Even if the collection of granular and specific location data establishes an information privacy interest, Plaintiffs’ theory is undercut by the admission that Defendant only tracked and collected data during use of Google services.

Accordingly, Defendant’s “profile” of a user is only as specific as their use of Google services. Carpenter v. United States and United States v. Jones do not undercut this conclusion. Carpenter v. United States addressed whether the Fourth Amendment required government agents to secure a warrant to access historical cell phone records (cell-site location information). 138 S. Ct. 2206, 2211, 2220, 201 L. Ed. 2d 507 (2018). First, there was no claim that MetroPCS and Sprint, the phone companies holding the cell-site location information, violated the plaintiff’s right of privacy by having such robust geolocation records. Id. at 2212. The case thus does not stand for the proposition that geolocation collection violates the right of privacy.

Second, the cell-site location information discussed in Carpenter was comprehensive—the cell-site location information provided cellular companies with a rough “map” of a customer’s fluid movements. Id. at 2211. Such comprehensive data collection is not at issue here; Plaintiffs’ geolocation information depends on how often they use Google’s services. Defendant’s collection of geolocation data is not automatic; it does not happen by the routine “pinging” of a cell-phone tower. Cf. United States v. Jones, 565 U.S. 400, 417, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012) (Sotomayor, J., concurring) (“I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements.” (emphasis added)). Here, unlike the continual GPS tracking in Jones, not all of Plaintiffs movements were being collected, only specific movements or locations. Such “bits and pieces” do not meet the standard of privacy established in Carpenter or Jones. Carpenter, 138 S. Ct. at 2218 (“[A] cell phone … tracks nearly exactly the movements of its owner … [to] private residences, doctor’s offices, political headquarters, and other potentially revealing locales”); see also Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111 MICH. L.R. 311, 328-29 (2012) (discussing the mosaic theory).

Second, and relatedly, the Court agrees with Defendant that Plaintiffs’ allegations are far too conclusory and speculative. Without more particular pleading, the Court cannot determine if Defendant extrapolated a “mosaic” from the user data or if the data collected is “sensitive and confidential” information. Indeed, “[a] person’s general location is not the type of core, value, informational privacy explicated in Hill.” Fredenburg v. City of Fremont, 119 Cal. App. 4th 408, 14 Cal. Rptr. 3d 437, 446 (Ct. App. 2004). It is entirely speculative that geolocation data was ever collected from a Plaintiff while at a sensitive or confidential location. See Compl. ¶ 108 (“[Google] can track where and when consumers shop, the establishments they pass once or every day, which restaurants they frequent, the doctors they visit, where they pump their gas.” (emphasis added)); see also Compl. ¶ 11 (not reciting Plaintiff Patacsil’s precise location history for privacy reasons, but also only stating that Defendant could have determined Patacsil’s precise geolocation movements). As the Court discussed above simply carrying a mobile device does not give Defendant the ability to track a user. It is entirely speculative what data Defendant collected. Cf. Gonzales v. Uber Techs., Inc., 305 F. Supp. 3d 1078, 1091 (N.D. Cal. 2018) (finding information privacy right after the plaintiff specifically alleged that the defendant collected his home address); see also In re Yahoo Mail Litig., 7 F. Supp. 3d at 1040 (requiring specifics as to why email contents were private). Much like In re Yahoo Mail Litigation, Plaintiffs’ claims are too conclusory and the Court cannot assess whether Plaintiffs had a legally protected privacy interest in the specific places they went or even how often their geolocation was accessed. See 7 F. Supp. 3d at 1041 (“The problem for Plaintiffs in the instant case, however, is that to the extent Plaintiffs intend to allege that they have a privacy interest in the specific content of their emails, their allegations are fatally conclusory.”). Allowing such conclusory and speculative pleading to survive a Rule 12(b)(6) motion to dismiss would obliterate the “high bar” set for establishing an invasion of privacy claim. Because Plaintiffs do not plead sufficient facts to establish a legally protected privacy interest, the Court does not reach the remaining two factors.