In re Google Assistant Privacy Litig.

457 F.Supp.3d 797

IN RE GOOGLE ASSISTANT PRIVACY LITIGATION

Case No. 19-cv-04286-BLF

United States District Court, N.D. California, San Jose Division.

Signed May 6, 2020

ORDER RE DEFENDANTS’ MOTION TO DISMISS

[Re: ECF 56]

BETH LABSON FREEMAN, United States District Judge

The instant litigation comprises two separately-filed cases that the Court has consolidated. See ECF 42 (consolidating Kumandan et al. v. Google LLC et al. , Case No. 19-cv-04286-BLF and Galvan et al. v. Google LLC et al. , Case No. 19-cv-04360-BLF). Both cases charge Defendants Google LLC and Alphabet, Inc. with unlawfully intercepting, recording, disclosing, and using the private conversations of thousands of users of the Google Assistant software. Presently before the Court is Defendants’ motion to dismiss the entire consolidated suit. ECF 56. Having considered the parties’ arguments and the applicable law, the Court GRANTS IN PART and DENIES IN PART the motion to dismiss; further, any dismissals are WITH LEAVE TO AMEND.

I. BACKGROUND

This is a putative consumer class action concerning the Google Assistant, a virtual assistant software developed by Defendants Google LLC and Alphabet, Inc. for use on various "Google Assistant Enabled Devices" ("GAEDs") manufactured by Defendants and by third parties. Specifically, the operative Consolidated Amended Class Action Complaint ("Consolidated FAC"), which was filed on October 25, 2019, ECF 48, contains the following allegations:

The Google Assistant is a voice-activated software, which means that users can ask questions of and give instructions to the Google Assistant using their voices. ECF 48 ("Consol. FAC") ¶¶ 2, 22. This software comes preloaded onto certain devices, such as the Google Home, the Google Pixel smartphones, and third party-manufactured smartphones that use the Google Android operating system; it can also be installed on a range of devices. Id. ¶ 2. Because the Google Assistant is voice-activated, it is constantly listening for "hotwords"—i.e., "Okay Google" or "Hey Google." Id. ¶ 22. It does this by recording and analyzing short snippets of audio, which are stored locally in the Google Assistant Enabled Device's random-access memory ("RAM"); these snippets are continuously overwritten, however, if no hotwords are detected. Id. ¶ 23. When the hotwords are detected, the Google Assistant switches into "active listening" mode, meaning that it begins recording and analyzing audio in order to carry out the user's command. Id. ¶ 24. The Google Assistant can also be manually activated by pressing a button on the device. Id.

Plaintiffs allege that Defendants also keep and use the audio recordings for two purposes other than carrying out the user's command: (1) to target personalized advertising to users, and (2) to improve the voice recognition capabilities of the Google Assistant. Id. ¶ 25. The focus of this suit is the latter. Citing a 2019 news article by VRT NWS, Plaintiffs allege that the Google Assistant produces a script of each audio recording that it stores; Defendants then task human subcontractors with comparing the script to the audio recording to check the accuracy of the Google Assistant's interpretation. Id. ¶ 35. In a blog post responding to this and similar reports, Google apparently confirmed that it uses human reviewers to analyze audio recordings, but stated that only "0.2 percent" of all audio recordings are subject to such analysis. Id. ¶ 39.

Sometimes, the Google Assistant may be triggered into active listening mode when the Google Assistant misperceives other words as the hotwords. This is known as a "false accept." Id. ¶ 39. Plaintiffs believe that in such situations, Defendants do not destroy the audio recordings, but rather continue to use them for personalized advertising and to analyze the accuracy of the Google Assistant—just as Defendants would do with authorized recordings. Id. ¶¶ 38, 41. As evidence, Plaintiffs point to the investigation carried out by VRT NWS, in which VRT NWS reviewed "more than a thousand" audio recordings and "identified 153 conversations" that were recorded due to false accepts. Id. ¶ 36.

This suit is based on Defendants’ use of audio recordings in "false accept" situations. In Plaintiffs’ view, such use is an invasion of privacy, especially because many of the recorded conversations take place in individuals’ homes. Id. ¶¶ 27-30. Plaintiffs also believe that this practice contravenes the privacy assurances that Defendants make to users in their Privacy Policy. Id. ¶ 31. Finally, Plaintiffs are particularly troubled by the fact that some of the recordings include the conversations of children because they do not believe that these children can consent to being recorded. Id. ¶ 42.

Based on the foregoing, Plaintiffs have sued Google LLC and its parent company Alphabet Inc. under various state and federal laws. There are 12 claims in the Consolidated FAC: (1) violation of the federal Wiretap Act, 18 U.S.C. §§ 2510 et seq. ; (2) violation of the federal Stored Communications Act ("SCA"), 18 U.S.C. §§ 2701 et seq. ; (3) violation of the California Invasion of Privacy Act ("CIPA"), Cal. Penal Code § 631(a) ; (4) violation of the CIPA, Cal. Penal Code § 632 ; (5) intrusion upon seclusion under California common law; (6) invasion of privacy, in violation of Article I, Section 1 of the California Constitution ; (7) breach of contract under California common law; (8) breach of express warranty under Cal. Comm. Code § 2313 ; (9) breach of the implied warranty of merchantability under Cal. Comm. Code § 2314 ; (10) violation of the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq. ; (11) violation of the California Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200 et seq. ; (12) request for declaratory judgment under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq. Consol. FAC ¶¶ 76-252.

These claims are brought by five Named Plaintiffs:

• Plaintiff Asif Kumandan is a resident of Kings County, New York. Consol. FAC ¶ 13. He alleges that he owned a Google Pixel smartphone during the Class Period (defined below) and that he "interacted with the Google Assistant on his Google Pixel repeatedly." Id. ¶ 52.

• Plaintiff Melissa Spurr is a resident of Union County, New York. Id. ¶ 14. She alleges that she owned a Google Home device during the Class Period and that "she interacted with this Google Home device repeatedly." Id. ¶ 51.

• Plaintiff B.S. is a minor member of Plaintiff Spurr's household; as such, she has allegedly interacted with Plaintiff Spurr's Google Home device during the Class Period. Id. ¶¶ 15, 51. She brings suit by and through her legal guardian, Plaintiff Spurr. Id. ¶ 15.

• E.G., is a member of Plaintiff Galvan's household; she was a minor during a portion of the Class Period but now brings suit on her own. Id. ¶¶ 17, 53. Plaintiff E.G. alleges that she owned a Samsung Galaxy Tab device on which she activated the Google Assistant. Id. ¶ 53. She further alleges that she interacted with the Samsung Galaxy Tab device repeatedly during the Class Period. Id.

• Lourdes Galvan is a resident of Los Angeles County, California. Id. ¶ 16. She alleges that she interacted with Plaintiff E.G.’s Samsung Galaxy Tab device during the Class Period. Id. ¶ 53.

To be precise, all five Named Plaintiffs assert Counts 1-7 and 11-12 on behalf of themselves and the following nationwide "Class":

All individual purchasers of a Google Assistant Enabled Device, who reside in the United States and its territories and members of their households, whose conversations were obtained by Google without their consent or authorization and/or were shared with third parties without their consent from at least as early as May 18, 2016 to the present, or during the applicable statute of limitations period (the "Class Period").

Consol. FAC ¶ 60. As for Counts 8, 9, and 10, Plaintiffs Kumandan and Spurr assert these claims on behalf of themselves and the "Google Manufactured Device Subclass," which is defined as:

A Subclass of individual purchasers of a Google Manufactured Device, who reside in the United States and its territories, and members of their households, whose conversations were obtained by Google without their consent or authorization and/or were shared with third parties without their consent during the Class Period.

Id.

Defendants now move to dismiss the Consolidated FAC in full pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF 56 ("Mot.") at 1. The motion has been fully briefed and was heard on April 9, 2020.

ECF 58 ("Opp."); ECF 61 ("Reply"); ECF 75 (hearing).

II. LEGAL STANDARD

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). In other words, "[a] motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’ " Conservation Force v. Salazar , 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001) ). To survive a Rule 12(b)(6) motion, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotation marks omitted).

A court's review on a 12(b)(6) motion to dismiss "is limited to the complaint, materials...