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Hewitt V. Google

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Hewitt V. Google Case 5:21-cv-02155 Document 1 Filed 03/26/21 Page 1 of 118 1 Lesley Weaver (Cal. Bar No.191305) Mitchell M. Breit (pro hac vice to be sought) Matthew S. Melamed (Cal. Bar No. Jason ‘Jay’ Barnes (pro hac vice to be sought) 2 260272) An Truong (pro hac vice to be sought) Anne K. Davis (Cal. Bar No. 267909) Eric Johnson (pro hac vice to be sought) 3 Angelica M. Ornelas (Cal. Bar No. 285929) SIMMONS HANLY CONROY LLC Joshua D. Samra (Cal. Bar No. 313050) 112 Madison Avenue, 7th Floor 4 BLEICHMAR FONTI & AULD LLP New York, NY 10016 555 12th Street, Suite 1600 Tel.: (212) 784-6400 5 Oakland, CA 94607 Fax: (212) 213-5949 Tel.: (415) 445-4003 [email protected] 6 Fax: (415) 445-4020 [email protected] [email protected] [email protected] 7 [email protected] [email protected] [email protected] 8 [email protected] [email protected] 9 Elizabeth C. Pritzker (Cal. Bar No. 146267) 10 Jonathan K. Levine (Cal Bar No. 220289) Caroline C. Corbitt (Cal Bar No. 305492) 11 PRITZKER LEVINE LLP 1900 Powell Street, Suite 450 12 Emeryville, CA 94608 Tel.: (415) 692-0772 13 Fax: (415) 366-6110 [email protected] 14 [email protected] [email protected] 15 Attorneys for Plaintiffs 16 17 IN THE UNITED STATES DISTRICT COURT 18 FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 19 20 BENJAMIN HEWITT and KIMBERLEY No. ___________________________ WOODRUFF, on behalf of themselves and 21 all others similarly situated, CLASS ACTION COMPLAINT 22 Plaintiffs, 23 v. DEMAND FOR JURY TRIAL 24 GOOGLE LLC, 25 Defendant. 26 27 28 Case No. CLASS ACTION COMPLAINT Case 5:21-cv-02155 Document 1 Filed 03/26/21 Page 2 of 118 TABLE OF CONTENTS 1 I. INTRODUCTION ................................................................................................................ 1 2 II. JURISDICTION, VENUE, AND ASSIGNMENT ............................................................. 10 III. PARTIES ............................................................................................................................ 10 3 IV. FACTUAL ALLEGATIONS ............................................................................................. 12 4 A. The Operative Terms of Service Between Google and Google Account Holders Repeatedly and Uniformly Promise that Google Will Not Sell Account Holders’ 5 Personal Information to Google RTB Participants ................................................ 12 6 1. The Terms of Service Provide That California Law Governs ................... 12 7 2. The Terms of Service State Google Will Not Sell or Share Personal Information ................................................................................................. 13 8 3. The Google Privacy Policy Promises Not to Sell or Share Personal 9 Information ................................................................................................. 15 10 4. Google Makes Additional Statements Promising Not to Sell or Share Account Holders’ Information ................................................................... 18 11 a) The Google “Who are Google’s Partners” Webpage Promises ..... 19 12 b) The Google “Personalized Advertising” Webpage Promises ........ 19 13 c) The Google “We do not sell your personal information to anyone.” 14 Webpage Promises ......................................................................... 21 15 d) The Google “Your Privacy is Protected by Responsible Data Practices” Webpage Promises ........................................................ 21 16 e) Google CEO Sundar Pichai’s Promises ......................................... 23 17 5. A Summary of Google’s Promises ............................................................. 24 18 B. Google Violates its Promises to Account Holders by Selling Their Personal 19 Information on Google RTB .................................................................................. 24 20 1. The Google RTB Shares Account Holders’ Personal Information ............ 29 21 a) OpenRTB Integration ..................................................................... 30 22 b) Real-Time Bidding Protocol Buffer v.199 ..................................... 31 23 c) Authorized Buyers Real-time Bidding Proto ................................. 35 24 d) Infrastructure Options for RTB Bidders (Part 4) ........................... 38 25 2. The Data Google Discloses is Designed to be Personally Identifiable to Google RTB Participants ........................................................................... 41 26 C. Google Sells Account Holders’ Private Information ............................................. 48 27 1. Plaintiffs Have Identified Hundreds of Companies Who Are Winning 28 Case No. - i - CLASS ACTION COMPLAINT Case 5:21-cv-02155 Document 1 Filed 03/26/21 Page 3 of 118 Bidders in Google’s Ad Exchange Auctions ............................................. 50 1 2. Google’s Promises Versus Google’s Actions ............................................ 51 2 D. Google’s Improper Sale of Personal Information Is a Serious Invasion of the 3 Privacy and Is Highly Offensive ............................................................................ 55 4 E. Google Faces Numerous Regulatory and Governmental Agency Investigations for RTB Privacy Concerns ........................................................................................... 57 5 F. Google Has Been Unjustly Enriched ..................................................................... 60 6 G. Plaintiffs’ Personal Information is Property Under California Law ...................... 67 7 H. Google’s False Privacy Promises are Market-Tested ............................................ 71 8 I. Fraudulent Concealment and Tolling ..................................................................... 73 9 V. CLASS ACTION ALLEGATIONS ................................................................................... 74 10 VI. COUNTS ............................................................................................................................. 76 11 COUNT ONE: BREACH OF CONTRACT ...................................................................... 76 12 COUNT TWO: BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING .................................................................................................... 78 13 COUNT THREE: VIOLATIONS OF THE CALIFORNIA UNFAIR COMPETITION 14 LAW (“UCL”) ....................................................................................................... 82 15 COUNT FOUR: CALIFORNIA CONSTITUTIONAL INVASION OF PRIVACY ....... 84 16 COUNT FIVE: INTRUSION UPON SECLUSION ......................................................... 87 17 COUNT SIX: PUBLICATION OF PRIVATE INFORMATION ..................................... 88 18 COUNT SEVEN: BREACH OF CONFIDENCE ............................................................. 89 19 COUNT EIGHT: VIOLATION OF THE CALIFORNIA INVASION OF PRIVACY ACT ................................................................................................................................ 90 20 COUNT NINE: VIOLATIONS OF THE ELECTRONIC COMMUNICATIONS 21 PRIVACY ACT – UNAUTHORIZED INTERCEPTION, USE, AND DISCLOSURE ....................................................................................................... 93 22 COUNT TEN: VIOLATION OF THE ECPA WIRETAP ACT – UNAUTHORIZED 23 DISCLOSURE OF ELECTRONIC COMMUNICATIONS BY AN ECS ........... 98 24 COUNT ELEVEN: VIOLATION OF THE ECPA STORED COMMUNICATIONS ACT – UNAUTHORIZED DISCLOSURE OF ELECTRONIC COMMUNICATIONS 25 BY AN ECS ......................................................................................................... 101 26 COUNT TWELVE: VIOLATION OF THE VIDEO PRIVACY PROTECTION ACT . 104 27 VII. PRAYER FOR RELIEF .................................................................................................... 110 VIII. JURY TRIAL DEMAND ................................................................................................. 111 28 Case No. - ii - CLASS ACTION COMPLAINT Case 5:21-cv-02155 Document 1 Filed 03/26/21 Page 4 of 118 Case 5:21-cv-02155 Document 1 Filed 03/26/21 Page 5 of 118 Case 5:21-cv-02155 Document 1 Filed 03/26/21 Page 6 of 118 1 I. INTRODUCTION 2 1. Through its various consumer-facing products and services – and its business 3 advertising and surveillance tools – Google amasses data about billions of people for the purpose 4 of creating detailed dossiers about them in furtherance of targeted advertising. Recognizing that 5 American consumers have significant privacy concerns, however, Google makes two 6 “unequivocal” promises to users who sign up for Google’s services: (1) “Google will never sell any 1 7 personal information to third parties;” and (2) “you get to decide how your information is used.” 8 Google also promises that it will not use certain sensitive information for advertising purposes. 9 10 11 12 13 14 2. Google breaks these promises billions of times every day. 15 3. This Complaint identifies how Google actively sells and shares consumers’ personal 16 information with thousands of entities, ranging from advertisers to publishers to hedge funds to 17 political campaigns and even to the government, through its Google Real-Time Bidding system. 18 The personal information that Google sells, shares and uses includes the very sensitive information 19 Google promised it would not use for advertising purposes. These practices are not disclosed to 20 consumers. 21 4. This case is brought on behalf of all Google account holders whose personal 22 information
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