[00:00:06] Speaker 01:
May I please the court?

[00:00:07] Speaker 01:
My name is Margaret McLean for the plaintiffs.

[00:00:09] Speaker 01:
I'd like to reserve three minutes, please, for rebuttal.

[00:00:12] Speaker 04:
Just keep an eye on the clock.

[00:00:13] Speaker 01:
Will do.

[00:00:15] Speaker 01:
This is a case about Google's Android lockbox program, which the Committee on Antitrust described as a covert effort to track real-time data on the usage and engagement of third-party apps.

[00:00:30] Speaker 01:
And this included specific usage data that enabled Google to track not just which apps a user had, but also how frequently they use the apps and for how long.

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And in certain other cases to go even further and to track also specific searches and other actions that users took within these apps.

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And so plaintiffs are Android users who have brought claims arising out of this conduct.

[00:00:51] Speaker 01:
I'd like to focus on two in particular, on the one, the invasion of privacy claims, both common law and constitutional, and then on the other hand, the breach of contract claim.

[00:01:03] Speaker 01:
As far as the privacy claims, the district court correctly concluded that plaintiffs did have a reasonable expectation of privacy in their usage information about third-party non-Google apps based on Google's own representations in the privacy policy, but it nonetheless dismissed the claims on the finding that Google's conduct was not highly offensive.

[00:01:23] Speaker 01:
And for the district court to draw that conclusion as a matter of law at the pleading stage was error.

[00:01:28] Speaker 04:
Can I ask you about the privacy policy?

[00:01:30] Speaker 04:
Because it says that they'll collect information about activity on third-party apps that use our services and information about apps that you use to access services.

[00:01:44] Speaker 04:
And the court thought that it was, I think the term he used was counterintuitive to think that services would mean the Android operating system itself.

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It's defined in the policy to include the Android operating system.

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So why under the plain reading of the terms of the policy, what wasn't their disclosure that they would collect exactly this kind of information?

[00:02:11] Speaker 01:
Sure, Your Honor.

[00:02:12] Speaker 01:
In other places in the privacy policy itself, Google uses the specific language Android device with Google Apps.

[00:02:20] Speaker 01:
It does that in two places, at least.

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It does it at ER 32.

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And it does it in even more detail at ER 53, where there's a specific additional context, little blurb about use of Android device with Google Apps.

[00:02:37] Speaker 01:
Again, implying that there is also an Android device without Google Apps.

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If all apps are Google Apps on an Android device, then it's redundant and unnecessary to talk about an Android device with Google Apps.

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It even gives an example.

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This is again on ER 53.

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says these devices, the Android devices, use Google Play services and other pre-installed apps that include services like Gmail, Maps, your phone's camera and phone dialer, etc.

[00:03:03] Speaker 01:
Again, this is giving not just an impression but a clear message that there is still such a thing as a Google app and a non-Google app even in the context of using an Android device.

[00:03:16] Speaker 03:
There is a Google app and a non-Google app, and there is also Google apps on non-Android devices, right?

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I think I have a Google app on my iPhone or something.

[00:03:29] Speaker 03:
So those do exist.

[00:03:30] Speaker 03:
Those things do exist.

[00:03:31] Speaker 03:
I'm not sure how that over, I mean, I think you would have to say that that reference is meaningless, I guess, to make the argument that it'd be superfluous or

[00:03:44] Speaker 03:
Is that your point?

[00:03:46] Speaker 01:
Yes.

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What would it mean to say an Android device with Google apps if necessarily all Android devices have only Google apps by their nature, by the virtue of the fact that it's on an Android device.

[00:03:57] Speaker 01:
If that transforms everything into a Google app, then it doesn't make sense to talk about Android devices with Google apps or to talk about or to give examples of what might be a Google app on an Android device if all apps are magically Google apps.

[00:04:12] Speaker 03:
When the apps aren't Google apps, but the

[00:04:15] Speaker 03:
But the operating system itself is a service.

[00:04:20] Speaker 03:
I mean, you would agree that the privacy policy says that, right?

[00:04:26] Speaker 01:
I do, but I would make two points about that.

[00:04:29] Speaker 01:
In the bullet just underneath where it says platforms like the Chrome browser and Android operating system, this is on ER30, it references products that are integrated into third-party apps and sites like ads and embedded Google Maps.

[00:04:42] Speaker 01:
So again, that's giving you the impression that a third-party app that uses our services is something that has an actual Google product embedded into it, a map or a Google search bar, something of that sort.

[00:04:54] Speaker 01:
Again, it's not covering all apps used in all ways.

[00:05:00] Speaker 03:
Yeah, it seems like, you know, if I assume that you're right about all that, then basically what you're saying is the privacy policy in one place says that Google, that the Android operating system is

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Google service.

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And then it says, track things on Google services.

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And then elsewhere, it talks about actual Google apps and says, we'll be tracking things on those too.

[00:05:26] Speaker 03:
But it's not clear that those two things are inconsistent.

[00:05:29] Speaker 03:
It could be redundant, I suppose.

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But there's not an inconsistency.

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Or do you think there's an inconsistency?

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And if there isn't, do you think that just the redundancy itself is enough to show that

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to use district court judges, somehow it makes it counterintuitive, I guess.

[00:05:47] Speaker 01:
I would say both, Your Honor.

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I would say I do think the redundancy in and of itself at least raises an ambiguity.

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Obviously, we try to construe contracts so as to give meaning to all of their terms, and that doesn't happen if you have Google Apps being something else.

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But again, even just the use of

[00:06:06] Speaker 01:
the terms Google apps and then third-party acts and services like ads and embedded Google Maps again they're giving examples they're meant to be representative examples that's like a Google product that is actually embedded into it that says a recognizable Google thing on it not just

[00:06:23] Speaker 01:
all apps by virtue of touching the Android operating system.

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Another point I would raise on this is that ER 31, it says, we collect information about the apps, browsers, and devices you use to access Google services.

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Now, if you're talking about Android as a Google service in that sense, it doesn't make sense, right?

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You don't use an app to access Android.

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It's the other way around.

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It's the Android operating system that allows you to access an app.

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So I would argue at a very minimum, there's ambiguity about whether

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Android is meant to constitute a Google service in the context of these app discussions.

[00:07:00] Speaker 04:
But doesn't that just reflect the fact that this is a policy?

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If this were the Android privacy policy, that would seem like a stronger argument for you.

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But this is a policy, this is a general policy that covers Android, it covers other kinds of things.

[00:07:17] Speaker 04:
maybe it makes a little bit less sense as applied to Android, but doesn't the breadth of applicability of the policy kind of account for why maybe it's a little bit awkward in some of its applications?

[00:07:30] Speaker 01:
I would argue that that could cut the other ways as well, Your Honor, that the fact that it is a general policy and it's not making clear

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what the effect is of using apps on an Android device versus another type of device, that it does have this language that would seem to be contradictory and repetitive, would again raise an ambiguity at a minimum, make it inappropriate to conclude as a matter of law that there's no promise here.

[00:07:53] Speaker 03:
That's kind of why I was asking about the contradictory versus redundant or repetitive.

[00:07:58] Speaker 03:
It seems to me that given if you're trying to write a broad policy that applies to

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Google Apps that run on non-Android devices and also Android devices.

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It seems intuitive to me that there would be some redundancy or repetitiveness perhaps if you're trying to write a goal policy that applies to all these different scenarios.

[00:08:15] Speaker 03:
Contradictory is a different thing.

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If it's contradictory, that would seem to be more troubling.

[00:08:20] Speaker 03:
I'm still just not seeing where something is contradictory.

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I'm seeing where arguably it renders

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some aspects of the privacy policy arguably superfluous in circumstances.

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But again, that, or redundant, but that doesn't, that's, if you're trying to write a privacy policy that's broad and applies to every Google product, then it seems to me that that might be impossible not to have some redundancy.

[00:08:46] Speaker 01:
I would respond that it would have been very easy to be clear about the effect of using apps on an Android device as opposed to any other.

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could simply have said so rather than saying it could have said third-party apps and sites were things with embedded services or any app used on an Android device.

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It would have been a very fixable problem if that were something they desired to do.

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And Google has indicated in numerous places in the policy that it intends this to be clear, that it intends it to be comprehensive.

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We understand this is a big responsibility.

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We work hard to put you in control.

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And none of that would seem to be coming to bear in the way that they've used Android and apps.

[00:09:24] Speaker 01:
within this policy.

[00:09:27] Speaker 00:
This is a little different issue, but did the plaintiffs allege that they read the policy before purchasing the devices or relied upon the policy?

[00:09:37] Speaker 01:
Before purchasing their policy, no.

[00:09:39] Speaker 01:
But the devices, no.

[00:09:40] Speaker 01:
One plaintiff did allege that she read it, but she didn't allege the timing.

[00:09:44] Speaker 00:
She read it at some point.

[00:09:45] Speaker 00:
Correct.

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Is that all we know from the allegations?

[00:09:47] Speaker 00:
That's correct.

[00:09:51] Speaker 04:
Did you want to reserve the rest of your time?

[00:09:54] Speaker 04:
Yes.

[00:09:54] Speaker 04:
We used up a lot of your time, but we'll give you two minutes.

[00:09:56] Speaker 01:
Thank you.

[00:09:56] Speaker 01:
I appreciate it, Your Honor.

[00:10:09] Speaker 04:
Mr. Berkowitz.

[00:10:11] Speaker 02:
Good morning, Your Honors, and may it please the Court, Ben Berkowitz for the appellee, Google.

[00:10:17] Speaker 02:
We obviously agree that Google disclosed both that Android was a service and that it collected information about third-party app activity on its services, including Android.

[00:10:31] Speaker 02:
I'm happy

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to answer any questions the court may have.

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I'm happy to talk about the fraud claims and so forth.

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But I'd like to use the time in a way that would be most useful for the court.

[00:10:44] Speaker 04:
you might clarify for me, is the argument we were just discussing with your friend on the other side is essentially an argument that the district court's reading of the policy was wrong.

[00:10:59] Speaker 04:
I got the sense from the introductory parts of your brief that you did not agree with the district court's reading of the policy, but it wasn't clear to me that you had really

[00:11:08] Speaker 04:
develop that as an independent basis for affirming, that we might affirm on the ground that the policy meant what was suggested and not what the district court said.

[00:11:23] Speaker 04:
Can you sort of, is that an argument that you've preserved here?

[00:11:26] Speaker 02:
We've certainly argued that the collection was disclosed, and I think that spans a number of pages of our brief.

[00:11:34] Speaker 02:
That argument goes to two different aspects of the privacy claim.

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It goes to both whether or not there is an expectation of privacy, and it also goes to whether or not

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the alleged intrusion is a serious intrusion.

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And we see the case law, the teachings of the California Supreme Court in Hill and Pioneer, but also this court's precedent in InRe Facebook, consider that aspect in both of those prongs.

[00:12:02] Speaker 02:
So for example, in InRe Facebook, the court looked at the seriousness of the alleged intrusion by specifically examining, including specifically examining

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Facebook's alleged promise, in that case, not to collect logged out user behavior.

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Here, obviously, Google made no such promise.

[00:12:23] Speaker 02:
It disclosed precisely the opposite.

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In other words, it disclosed that it was collecting information about third-party app activity.

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And of course, also unlike in-rate Facebook here, this is logged in activity, et cetera.

[00:12:36] Speaker 02:
So we've made that argument.

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We think it's relevant, obviously,

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to the breach of contract claims, to the fraud claims, and, of course, also to the privacy claims.

[00:12:50] Speaker 03:
What is your response to, you know, I don't think the other side disagrees that you do define the operating system as a service and you do say you collect that on services.

[00:13:02] Speaker 03:
But I think their argument is, yeah, but elsewhere you talk about apps running on the operating system, and that would be kind of

[00:13:10] Speaker 03:
But words on your mother redundant that would be there's no reason to talk about that because you already told them you're gonna be collecting What is your response and said that and I guess then that creates ambiguity in the contract?

[00:13:22] Speaker 03:
What is your response to that?

[00:13:23] Speaker 02:
Well, I think I think we need to look at the structure of the contract So we're kind of looking at provisions in different paragraphs here So I don't think there's any contradiction if you look at er 30, which is the first page of the contract

[00:13:34] Speaker 02:
That's where it defines Android is the operating system beginning on your 31.

[00:13:42] Speaker 02:
It says there's a there's a subsection that says information we collect as you use our services that's and then it goes on your apps browsers and devices.

[00:13:53] Speaker 02:
I believe that's the portion that my colleague was reading from.

[00:13:59] Speaker 02:
There's no contradiction there.

[00:14:00] Speaker 02:
It says, we collect information about the apps, browsers, and devices you use to access Google services.

[00:14:09] Speaker 02:
If we turn to the very next page,

[00:14:12] Speaker 02:
That section goes on to say, we also collect information.

[00:14:15] Speaker 02:
And here I'm reading it, ER 32, the second sentence.

[00:14:19] Speaker 02:
We also collect information about the interaction of your apps, et cetera, with our services.

[00:14:29] Speaker 02:
We then go on to the next section, which is your activity, which is the language cited here.

[00:14:36] Speaker 02:
And it says, we collect information about your activity in our services, meaning in Android.

[00:14:42] Speaker 02:
And again, the example that's given, I think it's the seventh bullet point, is activity on third-party sites and apps that use our services.

[00:14:53] Speaker 04:
Would you agree, though, that it's, I mean, in ordinary language, it's unnatural to talk about an app using the service of an operating system.

[00:15:07] Speaker 04:
That's not the way people normally talk about apps, is it?

[00:15:10] Speaker 02:
Well, I think it I think it makes sense in this context.

[00:15:12] Speaker 02:
I mean, these are apps that plaintiffs alleged they downloaded from the Google Play Store and that they used on the Android operating system.

[00:15:23] Speaker 02:
So these were certainly apps that were using Google services in multiple senses.

[00:15:28] Speaker 02:
I mean, they were using

[00:15:29] Speaker 02:
the Google Play Store, they were using the Android system.

[00:15:33] Speaker 02:
The district court, among the district court's findings, the district court noted that at no point had plaintiffs alleged that these apps were not using Google services, and in fact they may have been using additional Google services as well.

[00:15:49] Speaker 02:
And I don't believe plaintiffs have challenged that reasoning on appeal as well.

[00:15:55] Speaker 02:
So I think they use, these are apps that are using Google services, certainly in multiple senses.

[00:16:01] Speaker 04:
And if we were to conclude that the agreement or the policy was ambiguous, what would we do?

[00:16:09] Speaker 02:
Well, and that's, I mean, I think the court would affirm for the reasons that the district court dismissed the claims.

[00:16:16] Speaker 02:
And the district court did not,

[00:16:18] Speaker 02:
grant our motion to dismiss on the basis of consent.

[00:16:21] Speaker 02:
The district court granted our motion with respect to the fraud claims because plaintiffs had never read any statement by Google prior to, or don't allege they have ever read a statement by Google prior to purchasing their device.

[00:16:34] Speaker 02:
The omission claim, because it doesn't go to a central function, data collection is not a central function of the device.

[00:16:41] Speaker 02:
The privacy claims, or I should start with the breach of contract claims,

[00:16:45] Speaker 02:
The breach of contract claims because plaintiffs have not identified any promise by Google that was broken.

[00:16:51] Speaker 02:
And the privacy claims because both Google did not, unlike in Ray Facebook, Google never disclaimed that it was collecting this information.

[00:17:00] Speaker 02:
This is logged in, not logged out information.

[00:17:05] Speaker 02:
Google did not engage in, as the Ninth Circuit put it, blatantly deceitful conduct.

[00:17:10] Speaker 02:
uh... et cetera and the only uh... particular pieces of information that are alleged to have been collected with with respect to for example the size nine slippers and the uh... extra virgin olive oil are the type of routine uh... commercial behavior uh... that this court and uh... the courts in the circuit uh... have routinely found does not rise to a highly egregious breach of social norms that's a long way of saying the court can

[00:17:40] Speaker 02:
even if the court were to find this ambiguous, that's consistent with, I mean, the court can still affirm on all of the, for all of the well-reasoned reasons that the district court provided.

[00:17:54] Speaker 02:
I see I have two minutes remaining, but if the court has no questions for me, I'm happy to sit down.

[00:18:00] Speaker 04:
It looks like there are none, so thank you.

[00:18:01] Speaker 04:
Thank you, Your Honors.

[00:18:12] Speaker 01:
A few points.

[00:18:14] Speaker 01:
First of all, if the court were to find that the policy is ambiguous, then that would require a reversal of the district court's finding that there was no promise.

[00:18:21] Speaker 01:
If the court were to find that it was ambiguous as to whether or not Google did promise not to collect app activity in third party apps or non-Google apps, that would require a reversal.

[00:18:32] Speaker 00:
Why is that?

[00:18:34] Speaker 00:
I don't follow that argument because your argument that it's ambiguous is a way to defeat consent, and they in fact told users that they would be gathering this information.

[00:18:44] Speaker 00:
But if they didn't say it clearly enough, how does that mean they made a promise not to do it?

[00:18:49] Speaker 01:
I would say the finding would be that it is not clear whether or not they made the promise, and that needs to be evaluated by the finder of fact, whether to interpret that as a promise

[00:18:58] Speaker 01:
when Google sets out this is the data that we collected from points A, B, C, D, and E that it doesn't also include point F that was not clearly explained or disclosed.

[00:19:09] Speaker 03:
I thought the district court's position would kind of boil down to it's not clear that you made a promise that you've made clear that you will collect this stuff, but it is clear enough that you haven't promised you wouldn't.

[00:19:23] Speaker 03:
It seems that's kind of where the crack that you fell into in front of the district court.

[00:19:29] Speaker 01:
I agree.

[00:19:29] Speaker 01:
I think that is the right crack.

[00:19:31] Speaker 03:
And you're saying there's no such crack can even exist, I think, is your argument, right?

[00:19:35] Speaker 01:
It is my argument.

[00:19:37] Speaker 01:
If it's not clear, then how can he be so sure that there wasn't such a promise?

[00:19:43] Speaker 00:
Are you saying it was implied in the document?

[00:19:46] Speaker 00:
It's not clear?

[00:19:47] Speaker 01:
That is another source of the district court's error that he dismissed also our alternative quasi-contract claims that would certainly seem to fill that gap, that there is an implication or an understanding

[00:19:59] Speaker 01:
created by this document that... Have such a claim?

[00:20:02] Speaker 00:
We do.

[00:20:02] Speaker 00:
We have implied contract claims.

[00:20:03] Speaker 00:
Can you have an implied... I know you've alleged it, but is it cognizable when you have an express contract claim?

[00:20:11] Speaker 01:
We have an express contract that under that reading doesn't touch on this topic, that doesn't actually promise not to collect from third-party apps if we're going to credit that reading of the contract, but it was error on the district card's part to dismiss both of the claims.

[00:20:27] Speaker 01:
to find that neither of them, when they're put in the alternative for exactly that reason and that purpose.

[00:20:33] Speaker 01:
I would just point to one last thing just about the obviousness or not of this on the privacy policy.

[00:20:39] Speaker 01:
It is a program called Android Lockbox, right, which implies secrecy, implies they're not being open about it.

[00:20:45] Speaker 01:
The congressional subcommittee also described it as a covert program, so I would just end with that.

[00:20:53] Speaker 04:
Thank you very much.

[00:20:54] Speaker 04:
Council, thank both council for their arguments in this case and the case is submitted.