[00:00:00] Speaker 00:
The key question in this appeal is whether Google can show that its disclosures unambiguously informed users

[00:00:18] Speaker 00:
that Chrome would send their personal information to Google, even when sync is not enabled.

[00:00:23] Speaker 00:
To answer that question, all agree.

[00:00:25] Speaker 00:
A court must focus on how a reasonable user would interpret Google's disclosures.

[00:00:30] Speaker 00:
As this court put it in Facebook tracking, the relevant question is, considering the disclosures as a whole, would a user reasonably expect that Google would have access to a user's individual data?

[00:00:42] Speaker 02:
The Brown case seemed to have alleged essentially the same facts of what you did and survived.

[00:00:49] Speaker 02:
What's your response to why Brown should control in this case?

[00:00:54] Speaker 00:
Well, I mean, I think Brown is useful here because it suggests, I think, how the district court went wrong here and how it understood the proper inquiry there.

[00:01:05] Speaker 00:
What it did there was it looked at the actual disclosures, just the face of the disclosures,

[00:01:11] Speaker 00:
and it looked at those and it said, well, did Google unambiguously tell users that it was going to, that their information would be sent to Google if they used incognito browsing?

[00:01:23] Speaker 00:
And it said no, the disclosures did not unambiguously inform users that in fact they basically said the opposite.

[00:01:30] Speaker 00:
The same is true here, the disclosures in this case tell users not just that, not what Google says which is that

[00:01:40] Speaker 00:
Chrome users information will be sent to Google when they are not synced.

[00:01:44] Speaker 00:
It actually said exactly the opposite in the same way that the disclosures said for incognito mode.

[00:01:51] Speaker 00:
The problem here, and what went wrong I think below, is that the district court sidestepped those disclosures in favor of a backend inquiry into the character of the information that Chrome would send to Google compared with other browsers.

[00:02:07] Speaker 04:
So, Mr. Wessler, what are we to do with the fact that the district court appears to have decided this on different grounds than either party here is urging?

[00:02:16] Speaker 04:
Do we remand?

[00:02:20] Speaker 04:
Can we reach the underlying consent issue and bypass the browser agnostic question?

[00:02:25] Speaker 00:
Yeah, I mean, I do think this court can do either, although I think the latter of those two options certainly is available to this court because the question just asks, what do the disclosures say?

[00:02:37] Speaker 00:
And do they unambiguous?

[00:02:39] Speaker 00:
This is just a sort of level set here.

[00:02:42] Speaker 00:
This is Google's affirmative defense on consent.

[00:02:44] Speaker 00:
So what Google has to be able to establish is that its disclosures unambiguously inform users that Chrome will send personal information to Google when those users have not synced.

[00:02:59] Speaker 00:
And if you look at the Chrome Privacy Notice,

[00:03:02] Speaker 00:
It says in just plain English that that won't happen.

[00:03:07] Speaker 00:
It tells users, and this is just to point the court right to the document, first of all it's called, just so we're all clear about it, the Chrome Privacy Notice.

[00:03:17] Speaker 00:
It directs users that if they are interested in figuring out whether their data will be sent to Google when they use Chrome,

[00:03:24] Speaker 00:
They should look at the Chrome Privacy Notice, and it says, and I'm on just, so we're all on the same page, ER 357 and 358.

[00:03:32] Speaker 00:
And if you look at those pages, what you'll see, and these are the first two pages of the Chrome Privacy Notice, okay, what you'll see is that the first substantive section of the document discusses browser modes.

[00:03:42] Speaker 00:
And the first two sentences of that section tell a user, and I'm just going to quote here, that quote, you don't need to provide any personal information to use Chrome.

[00:03:52] Speaker 00:
And that Chrome quote has different modes that you can use and that privacy practices are different depending on the mode that you're using.

[00:04:00] Speaker 02:
Council, let me ask you this.

[00:04:04] Speaker 02:
Ninth Circuit colleague Judge Koh was sitting as the district judge originally on this.

[00:04:09] Speaker 02:
Is it your view that she correctly interpreted the facts and law in this case?

[00:04:15] Speaker 00:
Correct, Your Honor.

[00:04:16] Speaker 00:
She looked at this document, the one I was just quoting from, the Chrome Privacy Notice,

[00:04:21] Speaker 00:
And she held that it made, quote, specific representations that users' personal information wouldn't be sent to Google.

[00:04:29] Speaker 00:
It's not a difficult conclusion to reach, given the language that I just read.

[00:04:34] Speaker 00:
It also, for that matter, was the view that Google's own employees shared about the way that this all worked.

[00:04:40] Speaker 00:
When they were asked, does Chrome send

[00:04:44] Speaker 00:
users personal information to Google if those users are not saying that they said no and you know the record in this case is shot through with examples of Google employees recognizing that the consent system that Google had for Chrome was just completely broken.

[00:05:00] Speaker 04:
Mr. Wessler, that was on a motion to dismiss, and this comes to us on summary judgment.

[00:05:05] Speaker 04:
This is a question I may ask of your friends as well.

[00:05:09] Speaker 04:
What else came in between the motion to dismiss and the summary judgment that would distinguish Judge Coe's original order?

[00:05:16] Speaker 00:
We don't think there's anything that would distinguish what she said.

[00:05:20] Speaker 00:
This is, again, Google raised an affirmative defense.

[00:05:23] Speaker 00:
That wasn't decided at the motion to dismiss.

[00:05:26] Speaker 00:
The only thing there that was being tested was the sufficiency

[00:05:29] Speaker 00:
the complaint to state a claim, but the standard that this court applies when considering whether a defendant has satisfied

[00:05:38] Speaker 00:
its affirmative defense is what a reasonable user would understand about the disclosures.

[00:05:45] Speaker 00:
And that question can just be looked at based on the plain text of the relevant disclosures.

[00:05:50] Speaker 00:
There isn't anything beyond the language that's included in the Chrome Privacy Notice that I think that would at all matter regarding whether, as a matter of law, Google unambiguously disclosed this particular practice to any of its Chrome users.

[00:06:08] Speaker 03:
Page 51 of your brief, somewhat rhetorically you say, the question at the heart of this case is what a reasonable user would expect when reading that promise, not what a federal judge understands about it after discovery is complete and an hours-long evidentiary hearing on the underlying technical details.

[00:06:33] Speaker 03:
So if we were to hypothetically agree with you that the district court

[00:06:44] Speaker 03:
in the light most favorable to you, got the consent issue wrong.

[00:06:51] Speaker 03:
What would you be asking us to do here?

[00:06:54] Speaker 00:
Well, I think this gets back to Judge Johnstone's question.

[00:06:57] Speaker 00:
I mean, I do think there are two possible paths.

[00:06:59] Speaker 00:
One would be to remand for consideration of this question under the controlling and appropriate

[00:07:06] Speaker 00:
framework.

[00:07:07] Speaker 00:
I do think, however, that that framework essentially boils down to a question of what the disclosures say and whether they unambiguously disclose the practice.

[00:07:17] Speaker 00:
And here, you know, Google had the burden to come in and show unambiguously that it told people, we will do this.

[00:07:25] Speaker 03:
And that does that mean that you're asking us to say that in the light most favorable to you,

[00:07:32] Speaker 03:
a trier of fact could find that there wasn't the appropriate consent and send it to trial?

[00:07:39] Speaker 00:
Correct.

[00:07:40] Speaker 00:
I definitely think that's an option that exists for this court.

[00:07:43] Speaker 00:
And again, I just point you to that provision that I just read, which is about as clear as it gets that what users were told when they looked at this Chrome Privacy Notice was, if you don't sync, your personal information will not be sent to Google.

[00:08:01] Speaker 02:
Let me just ask you this.

[00:08:03] Speaker 02:
I'm certainly not an expert in technical matters, but I use them a lot.

[00:08:10] Speaker 02:
I use a lot of programs.

[00:08:12] Speaker 02:
And as I think about it, I can't remember a time when I ever read cover to cover the disclosures that go along with any of those programs.

[00:08:24] Speaker 02:
And when I do glance at them on occasionally, they are closer to hieroglyphics than standard English.

[00:08:30] Speaker 02:
Does it matter for purposes of our analysis of what the reasonable user would understand that almost all these disclosures are written in, from their perspective, hieroglyphics?

[00:08:43] Speaker 02:
Is it plain English?

[00:08:44] Speaker 02:
I get it.

[00:08:45] Speaker 02:
Does that, should that play any role in our understanding of what a reasonable user would experience?

[00:08:51] Speaker 00:
I think in this case it does not.

[00:08:54] Speaker 00:
I think we accept for this case that the disclosures that Google has control the consent question.

[00:09:01] Speaker 00:
I do think

[00:09:02] Speaker 00:
If the language that a party were to rely on was, you know, technical, dense, jargon-laden, coded language that no normal user would understand, that certainly would play into the relevant inquiry.

[00:09:20] Speaker 02:
agnosticism.

[00:09:21] Speaker 00:
Like browser agnosticism.

[00:09:22] Speaker 00:
I mean, I would submit, Your Honor, that unless you are a full stack engineer who is experienced in the way that browser interactions with websites work, you will have no idea and would have no reason to expect that that would be relevant at all to your understanding of or expectation about

[00:09:44] Speaker 00:
whether Google is surveilling you across the internet.

[00:09:46] Speaker 00:
Instead, what would be relevant to you is what Google would tell you about those practices in the documents it's identifying as governing the privacy practices.

[00:09:56] Speaker 02:
From your perspective, the disclosure in this case is clear.

[00:10:01] Speaker 02:
A reasonable user would understand that absent they're taking certain actions,

[00:10:07] Speaker 00:
their information would not be shared absolutely that's exactly correct your honor and you know about the only way that that and I realize there were two district judges in this case but but the second district judge reach the conclusion that

[00:10:22] Speaker 00:
somehow Google had unambiguously told everybody that this was going to happen was to ignore the actual document that governs this practice entirely, the Chrome Privacy Notice, in favor of this more generalized Google privacy policy.

[00:10:38] Speaker 00:
And, you know, on appeal, Google relies, I think, quite heavily on that.

[00:10:42] Speaker 00:
that separate document it says look don't worry about the chrome privacy notice even though we're talking about chrome users and we're talking about data that chrome users that's being sent up by these users use of chrome to google don't don't look at the chrome privacy notice focus instead

[00:10:59] Speaker 00:
on this general privacy policy.

[00:11:02] Speaker 00:
But there are a number of problems with that.

[00:11:05] Speaker 03:
Your argument is that even were we hypothetically to do that, we would look at stuff like on ER 328, the activity we collect may include Chrome browsing history you've synced to your Google account.

[00:11:19] Speaker 03:
And I'm going to be asking your friend about this, or 346, your Chrome browsing history is only saved to your account if you've enabled Chrome synchronization with your Google account.

[00:11:27] Speaker 00:
Or on ER 327, Your Honor, the information Google collects and how that information is used depends on how you use our services and how you manage your privacy controls.

[00:11:38] Speaker 00:
And then, Your Honor, on ER 343, directing users to go to the following privacy notices that provide additional information about Google services, one of which is the Chrome Privacy Notice.

[00:11:51] Speaker 00:
All of those

[00:11:53] Speaker 00:
are examples of language in the privacy policy that are explicitly telling users, look, if what you care about is whether Chrome is going to send your personal information to Google, go and look at this other document which will tell you exactly how to protect yourself if you don't want that to happen.

[00:12:14] Speaker 04:
Mr. Russell, can I, I guess, ask a different question about the applicable law here?

[00:12:20] Speaker 04:
These are state law claims and we see the reasonable user come up.

[00:12:24] Speaker 04:
I'm struggling a little bit to find a state case from where that develops.

[00:12:29] Speaker 04:
I'm not sure.

[00:12:30] Speaker 04:
It matters too much to who wins today, but what's your best anchor for these questions in the state law that we are obligated to apply?

[00:12:42] Speaker 00:
We don't really have a great case to provide you under California law, except to say that the standard

[00:12:49] Speaker 00:
that this court has adopted and has said derives from California law is that standard.

[00:12:55] Speaker 00:
I think it is, you know, consistent with the way that courts understand the question regarding privacy claims and consent.

[00:13:03] Speaker 00:
I will also note, Your Honor, that, you know, we're not just talking about privacy claims here.

[00:13:07] Speaker 00:
There is also a contract claim, a breach of contract claim, and certainly for that claim,

[00:13:13] Speaker 00:
All you would do in that claim, regardless of a reasonable user standard, is you would just look at the plain terms of these documents and you would look at them and you would say, does this clearly disclose this or does it clearly disclose that?

[00:13:28] Speaker 00:
reach that conclusion without needing to engage in any additional inquiry and so and that's your primary thrust is that this is a contract lock basically just look at the disclosures and they tell you one way or the other now Google didn't need to say the things it said in the chrome privacy notice about

[00:13:44] Speaker 00:
about how users could protect themselves from being tracked around the internet by Google.

[00:13:50] Speaker 00:
But it chose to make an affirmative statement, and by choosing to make that affirmative statement, it cannot now come in and claim to the contrary that somehow users have unambiguously consented to the very thing that it told them it wasn't going to do.

[00:14:05] Speaker 00:
I see that I've reserved the rest of my time for a little.

[00:14:07] Speaker 02:
Thank you.

[00:14:08] Speaker 02:
Absolutely.

[00:14:10] Speaker 02:
Mr. Shapiro, please.

[00:14:19] Speaker 01:
Good morning.

[00:14:21] Speaker 01:
Good morning.

[00:14:21] Speaker 01:
May it please the court, Andrew Shapiro for Google.

[00:14:27] Speaker 01:
This is a case brought by six individuals, and they don't dispute that they were shown a concise disclosure informing them that when they visit sites that use Google services like ads and analytics, Google receives the data at issue in this case.

[00:14:44] Speaker 01:
They don't dispute that they clicked, I agree, in response to that disclosure, and again clicked, I agree, in response to similar disclosures.

[00:14:52] Speaker 02:
OK, all that's true.

[00:14:54] Speaker 02:
But I still struggle with the fact the standard that we're looking at here, Mr. Shapiro, is what a reasonable user would understand.

[00:15:03] Speaker 02:
I cannot imagine that a reasonable user would have ever had the concept of browser agnosticism enter his or her mind.

[00:15:13] Speaker 02:
I am struggling with how looking at the material, particularly the earlier material that specifically says it won't be used, they would understand it was going to be used to everybody.

[00:15:27] Speaker 02:
What's your best argument based on the facts that a reasonable user would come out where Google is asking us to come out?

[00:15:37] Speaker 01:
Your Honor, I agree with you entirely that a reasonable user does not need to understand what browser agnostic means.

[00:15:45] Speaker 01:
A reasonable user should know that Chrome is a browser.

[00:15:50] Speaker 01:
I think that's relevant.

[00:15:52] Speaker 01:
And we believe a reasonable user would understand that your Chrome browsing history is the history of browsing you do on Chrome.

[00:16:03] Speaker 01:
Whereas data that Google receives when you visit sites that use Google services, like ads and analytics, is data that Google receives

[00:16:14] Speaker 01:
regardless of what browser you use.

[00:16:16] Speaker 04:
What are we to do there then of the conflict language?

[00:16:22] Speaker 04:
So sure, there might be all of these other agreements that Google enters into with its users.

[00:16:29] Speaker 04:
But then Google says that if these terms conflict with your specific service, and the users agree to this, it'll be governed by Chrome's terms, not all of these other Google terms.

[00:16:40] Speaker 01:
Yes, that's correct.

[00:16:41] Speaker 01:
And there is no conflict here.

[00:16:44] Speaker 01:
And I can take the two supposed promises that the plaintiffs have pointed to in this case, which, by the way, no person has ever construed the way they construed them.

[00:16:59] Speaker 01:
And these plaintiffs didn't construe it that way.

[00:17:01] Speaker 01:
There's no evidence that anyone ever construed them that way.

[00:17:05] Speaker 01:
But let's see what those promises say.

[00:17:07] Speaker 01:
The first one says,

[00:17:08] Speaker 01:
You don't need to provide any personal information to use Chrome, and they place a lot of... What's the page you're on?

[00:17:15] Speaker 01:
This is at, I think, ER 13... I'm sorry, not 1380.

[00:17:23] Speaker 01:
It is... 357.

[00:17:29] Speaker 04:
There's one version of it.

[00:17:30] Speaker 01:
I'll take your help, Your Honor, because I apologize for that, because we used the wrong page.

[00:17:34] Speaker 01:
I just want to make sure I'm on the right page with what you're reading.

[00:17:36] Speaker 01:
No, thank you, and I should have had that.

[00:17:37] Speaker 03:
No, no.

[00:17:38] Speaker 01:
Go ahead.

[00:17:38] Speaker 01:
So there are essentially two main promises or supposed promises that the plaintiffs are focusing on here.

[00:17:43] Speaker 01:
The first one is you don't need to provide any personal information to use Chrome.

[00:17:47] Speaker 01:
So I think we all actually agree that what a court should be doing here is a holistic interpretation of what would a reasonable person take that to mean.

[00:17:55] Speaker 01:
And that's, by the way, what the district court did.

[00:17:59] Speaker 01:
That plainly refers to being able to use Chrome to browse the web without signing in or creating an account, unlike, say, TurboTax or

[00:18:07] Speaker 01:
an email address.

[00:18:08] Speaker 03:
So let's say that's right.

[00:18:10] Speaker 03:
Let's say I agreed with you on what's on 357.

[00:18:13] Speaker 03:
If we move to 358, the personal information that Chrome stores won't be sent to Google unless you choose to store that data in your Google account by turning on sync.

[00:18:25] Speaker 03:
And then it goes on to some things that I think are less important.

[00:18:28] Speaker 03:
But for the part that I've read, what is your view of what the reasonable consumer would take from that?

[00:18:35] Speaker 01:
So plaintiff's own expert, and this is at SER 1058, admitted that the Chrome Privacy Notice, with regard to that supposed promise, used personal information in a colloquial sense and refers to personal information as information to help you fill out forms and sign into sites you visit.

[00:18:56] Speaker 01:
I'm sorry, forgive me.

[00:18:58] Speaker 01:
Who agreed to that?

[00:18:59] Speaker 01:
This was the plaintiff's own expert.

[00:19:00] Speaker 02:
OK, so you're saying that the reasonable user

[00:19:05] Speaker 02:
would view this holistically, would view it in what way?

[00:19:10] Speaker 02:
What my colleague just read from ER 358.

[00:19:14] Speaker 01:
Right, so holistically is an important pointer because in the privacy policy to which each of these plaintiffs agreed, the privacy policy itself explains the at-issue data collection, the data collection that

[00:19:28] Speaker 01:
is being sued about here, said, this is E.R.

[00:19:33] Speaker 01:
at 1380, many of our services require you to sign up for a Google account.

[00:19:39] Speaker 01:
When you do, we'll ask for personal information like your name, email address, telephone number or credit card to store with your account.

[00:19:48] Speaker 01:
So in the holistic context, having under this legal fiction read and agreed to that, when they then see

[00:19:57] Speaker 01:
The personal information Chrome stores won't be sent to Google unless you choose to store that in your Google account by turning on Sync.

[00:20:05] Speaker 01:
It's entirely reasonable to conclude what their own expert did, but there's more than that.

[00:20:11] Speaker 03:
As a matter of law.

[00:20:12] Speaker 03:
Your argument is, as a matter of law, not that you can make that argument to the trier of fact that that's what a reasonable person would do, but as a matter of law,

[00:20:22] Speaker 03:
a reasonable person would interpret the personal information that Google stores by going back to what you read as to a specific subcategory of what a lot of people would view as personal information.

[00:20:34] Speaker 01:
Well, in particular when, as we must assume they did, reading all of the disclosures, because all of these disclosures, including the Chrome Privacy Notice, refer to sync data,

[00:20:48] Speaker 01:
and the at-issue data as two independent sources of information.

[00:20:52] Speaker 02:
The reasonable user has no idea what those are.

[00:20:55] Speaker 02:
No idea.

[00:20:56] Speaker 02:
How can you sync those together, so to speak?

[00:20:59] Speaker 01:
I think my answer is twofold.

[00:21:01] Speaker 01:
First, I'm going to push back a little on your premise and say that it is reasonable, and then I want to argue that we need to

[00:21:09] Speaker 01:
If we're going to be interpreting consent and disclosures and have an economy and technology that works, we have to at least assume that they're reading it with care.

[00:21:16] Speaker 02:
We have to find out what the reasonable user would understand.

[00:21:18] Speaker 01:
So Your Honor, I don't think you have to be a genius or have an engineering degree from Stanford to understand that when we say Chrome browsing history, this means you're browsing history when you use Chrome.

[00:21:33] Speaker 01:
And when we say activity on sites that use Google services, that means data from those sites.

[00:21:39] Speaker 01:
And I want to walk through where we show again and again that they're separate.

[00:21:44] Speaker 02:
Forgive me.

[00:21:44] Speaker 02:
I want to go back to 358, though, what my colleague read.

[00:21:48] Speaker 02:
Would you read that one more time, Judge Bennett?

[00:21:50] Speaker 03:
The personal information that Chrome stores won't be sent to Google unless you choose to store that data in your Google account by turning on sync.

[00:21:58] Speaker 02:
So basically, if I'm a regular person and I look at that,

[00:22:04] Speaker 02:
I probably wouldn't even go any farther.

[00:22:06] Speaker 02:
I wouldn't look at anything else because I would say, OK, I'm good with that.

[00:22:09] Speaker 01:
Well, and that's true, though.

[00:22:11] Speaker 01:
It is true that the personal information that Chrome stores is not sent to Google unless you sync your account.

[00:22:18] Speaker 01:
The personal information that Chrome stores, which is described separately in every one of these disclosures, is different from activity on third-party sites and apps that use our services.

[00:22:30] Speaker 01:
That's not personal information.

[00:22:32] Speaker 01:
that Chrome stores.

[00:22:33] Speaker 01:
For example, in the privacy policy, at the start of the class period, your activity, there's a heading called, and this is at ER 1382, your activity on other sites or apps.

[00:22:46] Speaker 01:
And the statements, the disclosure to which all of these plaintiffs agreed says, this activity might come from your use of Google products like Chrome sync, or from your visits to sites and apps that partner with Google.

[00:23:01] Speaker 02:
For your purposes, for Google's purposes, you want us to assume that the reasonable user would read the entire disclosure and would understand the interrelationship of the subparts and the syncing and the interconnection in order to really understand what they were agreeing to.

[00:23:24] Speaker 02:
Is that right?

[00:23:26] Speaker 01:
Yes, and I want to level set and explain why, because what's actually going on here?

[00:23:31] Speaker 01:
Sync, I think as an ordinary person, probably as your honors or your law clerks know, is a product that has ... It's not a privacy product at all.

[00:23:42] Speaker 01:
Sync is a service that says, I've got my bookmarks and my passwords on my phone.

[00:23:47] Speaker 01:
I'm going to sync them so that also when I'm on my laptop or my desktop, it auto fills addresses and you can turn that

[00:23:54] Speaker 01:
on or off.

[00:23:55] Speaker 01:
You have a much higher opinion of the average intelligence of the computer user than do I. Well, Your Honor, I hope that even with my explanation, it's at least relatively straightforward.

[00:24:09] Speaker 04:
There is no... Can I ask just a question that I asked your friend?

[00:24:13] Speaker 04:
We had the motion to dismiss ruling and the summary judgment ruling.

[00:24:18] Speaker 04:
Other than the

[00:24:20] Speaker 04:
evidence about browser agnosticism, what's Google's view of what came in between the ruling on this language of the motion to dismiss and the ruling on the summary judgment that supported the summary judgment motion?

[00:24:34] Speaker 01:
Sure.

[00:24:35] Speaker 01:
And I'm glad you asked, because Judge Koh did not have before her the benefit, even of a full record.

[00:24:43] Speaker 01:
Judge Koh, you can look back at her motion to dismiss ruling.

[00:24:47] Speaker 01:
was not able to analyze any of the disclosures that actually manifested the consent.

[00:24:51] Speaker 01:
The account holder agreements were not before her.

[00:24:54] Speaker 01:
Judge Coe discounted the privacy policy because at that stage on the pleading she said, well, there's an allegation or there are indications that for a certain period of time starting up to May 2020 or before May 2020, I've forgotten,

[00:25:08] Speaker 01:
The privacy policy was not incorporated, so I'm not going to consider that.

[00:25:12] Speaker 01:
So Judge Coe never undertook the legally required holistic interpretation of the privacy policy, which spells out, we get this, the account holder agreements, which spell out, we get this.

[00:25:25] Speaker 01:
So it's not surprising if she's looking only at the Chrome Privacy Notice that she might say, well, maybe someone would reach this question.

[00:25:32] Speaker 01:
But there's more.

[00:25:35] Speaker 02:
But let me just ask you this.

[00:25:38] Speaker 02:
Our friend, Judge Rogers, for whom we have great respect, had an eight-hour hearing trying to figure out what people understood and came up with this.

[00:25:48] Speaker 02:
I don't know if they came up with the concept of browser agnosticism, but how in heaven's name could a reasonable user have possibly thought about browser agnosticism or required eight hours to figure out what Google was saying?

[00:26:06] Speaker 01:
Yes, if that happened, if that's what had happened, Judge Smith, you'd be right to be concerned.

[00:26:12] Speaker 01:
But that's not actually how it arose.

[00:26:15] Speaker 01:
Here's what happened.

[00:26:16] Speaker 01:
And this is in, you can look at Judge Gonzalez-Roger's order regarding the evidentiary hearing on ER 321.

[00:26:24] Speaker 01:
Essentially, what happened was there was an argument about summary judgment.

[00:26:29] Speaker 01:
We were there arguing about summary judgment and class certification together, if I recall correctly.

[00:26:35] Speaker 01:
Plaintiff's Council stood up and said, well, this collection of data is specific to Chrome.

[00:26:42] Speaker 01:
The stuff that we're suing about is specific to Chrome.

[00:26:44] Speaker 01:
And that's an important fact, would have been.

[00:26:47] Speaker 01:
And the judge said, well, there doesn't seem to be anything in the record suggesting that.

[00:26:52] Speaker 01:
That's not a disputed fact.

[00:26:54] Speaker 01:
And they said, well, it is.

[00:26:56] Speaker 01:
We didn't put it in because we didn't have an opportunity to put in a statement of undisputed fact.

[00:27:00] Speaker 01:
This has to do with the case being handed off from Judge Coe to Judge Gonzalez-Rogers.

[00:27:04] Speaker 01:
Judge Coe did not have a practice of taking statements of undisputed facts.

[00:27:08] Speaker 01:
Judge Gonzalez-Rogers did.

[00:27:09] Speaker 01:
So Judge Gonzalez-Rogers said, I'll give you a second chance, plaintiffs.

[00:27:14] Speaker 01:
Right now, I would look at it, and I would say, there is no indication that the data you're suing about is in any way specific to Chrome.

[00:27:23] Speaker 01:
And so it makes perfect sense that it's disclosed in the privacy policy.

[00:27:26] Speaker 01:
And she said, but I'll give you another chance.

[00:27:28] Speaker 01:
If you can prove that it's different, put on whatever witnesses you want.

[00:27:32] Speaker 01:
So there was this long hearing.

[00:27:34] Speaker 01:
Under Rule 56, by the way, so it's perfectly appropriate, you know, it's a 56E, so it's appropriate to do for summary judgment, in lieu of essentially a statement of undisputed facts, she put on the evidence and correctly said, there's no dispute.

[00:27:48] Speaker 04:
But I guess, so this is the same question I asked your friend, Mr. Shapiro, the grounds for the summary judgment order relied on the browser agnosticism and

[00:28:05] Speaker 04:
not, it seems, on whatever the status quo before that hearing was, was a ruling that there is no genuine dispute of material fact as to consent or something else.

[00:28:17] Speaker 04:
So what are we supposed to do with that?

[00:28:21] Speaker 01:
The ruling below does not rise or fall on the browser agnostic decision, because in addition to asking a logical question, which I think any logical person would ask, which is,

[00:28:35] Speaker 01:
All right, is this something that is relevant to Chrome or not?

[00:28:40] Speaker 01:
Judge Gonzalez-Rogers specifically analyzed the Chrome Privacy Notice and rejected the reading that the plaintiffs offered here.

[00:28:47] Speaker 01:
And by the way, she noted throughout her decision that there were times where statements were being mischaracterized.

[00:28:52] Speaker 01:
This is on ER 27.

[00:28:56] Speaker 01:
Judge Gonzalez-Rogers said fifth, and I'm jumping

[00:29:01] Speaker 01:
It's in the next sentence here.

[00:29:02] Speaker 01:
Plaintiffs argue that a reasonable user reading the Chrome Privacy Notice would think that Google blocks all collection of the at-issue data when one uses the Chrome browser.

[00:29:13] Speaker 01:
Specifically, plaintiffs focus on the statements that one doesn't need to provide any personal information to use Chrome or that the personal information that Chrome stores won't be sent to Google unless you choose to store that data in your Google account by turning on sync.

[00:29:27] Speaker 01:
To make this argument,

[00:29:29] Speaker 01:
Plaintiffs completely ignore critical text and read others out of context.

[00:29:33] Speaker 01:
Importantly, the Chrome Privacy Notice explicitly indicates it only describes features

[00:29:39] Speaker 01:
that are specific to Chrome.

[00:29:40] Speaker 04:
What are those features though?

[00:29:42] Speaker 04:
Because a reasonable user, I'm still trying to figure out where that comes from, but a reasonable user would understand that it's the browser that's sharing the information, maybe, not that something else.

[00:29:57] Speaker 04:
How do you draw that line about specific to Chrome?

[00:30:02] Speaker 01:
Certainly these plaintiffs

[00:30:04] Speaker 01:
didn't draw that conclusion because although in the reply brief, the plaintiffs say over and over again, a normal person would start by looking at the Chrome notice.

[00:30:12] Speaker 01:
These plaintiffs never looked at the Chrome notice.

[00:30:14] Speaker 01:
So there's that.

[00:30:16] Speaker 01:
But beyond that, one of the items that we disclose we receive in the privacy policy is the browser type you're using.

[00:30:25] Speaker 01:
That wouldn't make sense if this is something that's only specific to Chrome.

[00:30:30] Speaker 01:
We say we collect various data, including

[00:30:32] Speaker 01:
user agent, bop, bop, bop, browser type.

[00:30:37] Speaker 01:
So it would be an impossible standard, I think, to expect.

[00:30:43] Speaker 01:
It is absolutely true that there's a fair amount going on.

[00:30:47] Speaker 02:
As I understand it, though, you're suggesting to us that in order to understand the text at ER 358 and so on, that we have to analyze this holistically.

[00:31:00] Speaker 02:
So let's just say, arguing though, that the court looking at this holistically said, this is not a summary judgment kind of thing.

[00:31:08] Speaker 02:
This really needs to go to a jury so they can analyze this situation and decide what the reasonable user would decide.

[00:31:16] Speaker 02:
If we did that, would it be your preference that we reverse and send it back to the district judge could do a summary judgment hearing again, or that we should simply send it back for trial?

[00:31:26] Speaker 01:
So first, I would say that this court, if you think that Judge Gonzalez-Rogers... Again, holistically, OK?

[00:31:32] Speaker 01:
Yeah, yeah, yeah.

[00:31:33] Speaker 01:
Placed too much emphasis on the issue of browser agnosticism.

[00:31:39] Speaker 01:
And I would argue that she didn't.

[00:31:43] Speaker 01:
You can affirm on any ground.

[00:31:45] Speaker 01:
And as was the case... Also reverse on any ground.

[00:31:48] Speaker 01:
True.

[00:31:49] Speaker 01:
But as was the case in Smith versus Facebook and the recent Hammerling case from a panel of this court,

[00:31:56] Speaker 01:
These exact disclosures, the disclosures about the data at issue, were held to be accurate and sufficient to obtain consent.

[00:32:05] Speaker 01:
But they weren't the same issues, though, the reasonable user, were they?

[00:32:10] Speaker 01:
They were, Your Honor.

[00:32:12] Speaker 01:
In Hammerling and in the Smith case, the question was, well, certainly in the Smith case it was, and in the Hammerling case it was a question, there were various claims, but there was a contract claim, and the question was, what is this language?

[00:32:24] Speaker 01:
I mean, is it ambiguous or is it unambiguous?

[00:32:27] Speaker 01:
The court said this language unambiguously discloses that Google collects the very data that the plaintiffs are suing them about.

[00:32:38] Speaker 02:
Well, again, I respect you're a smart lawyer arguing your case.

[00:32:42] Speaker 02:
But if I understand you correctly, you're basically saying, hey, you've got to look at this holistically.

[00:32:47] Speaker 02:
All I'm saying is if we look at it holistically and we conclude that the reasonable user wouldn't understand it the way you do,

[00:32:53] Speaker 02:
then we come to a different conclusion, do we not?

[00:32:56] Speaker 01:
If you rule that, I want you to give us the chance.

[00:33:01] Speaker 01:
Of course, I would ask that the court not send this directly to trial.

[00:33:06] Speaker 01:
But if you're arguing that Judge Gonzalez-Rodgers needs to assess it under a different standard, that she used the different standards, that should be the order.

[00:33:15] Speaker 04:
Mr. Shapiro, I wonder if you could provide me any help with, it does seem like a strange question, but where is this

[00:33:23] Speaker 04:
How do we anchor the reasonable user standard in the state law that we're obligated to apply in these cases?

[00:33:29] Speaker 01:
My answer is not going to be very different from my friends.

[00:33:32] Speaker 01:
I'm not sure.

[00:33:33] Speaker 01:
But I would suggest the following, which is the decision that this court issues, depending on where it comes out, but a decision in a case like this is going to have to set a standard for companies

[00:33:53] Speaker 01:
right disclosures, and the fact that Judge Gonzalez Rogers, as I think was mentioned right at the beginning of the argument of the other side, decided the Brown case differently

[00:34:07] Speaker 01:
I think suggest that this is a careful judge parsing the language carefully.

[00:34:10] Speaker 01:
Brown is about an actual privacy feature.

[00:34:12] Speaker 04:
Incognito.

[00:34:13] Speaker 04:
One reasonable user, reasonable judge, what have you, might read Brown to suggest that that's about whether you're sharing information with third parties, whereas the representations here are about whether you're just sharing parties with Google.

[00:34:29] Speaker 04:
The incognito would be adding that additional privacy with respect to those third parties.

[00:34:36] Speaker 04:
That may or may not distinguish it in your mind.

[00:34:38] Speaker 01:
No, and I would say in the Brown case, the argument that the Brown plaintiffs are making as well is you never indicated to us that when we were incognito, if we went to sites that used ads and analytics, anything would be transmitted or shared to Google.

[00:34:53] Speaker 01:
So I'll just wrap up.

[00:34:55] Speaker 01:
Wrap up, please.

[00:34:56] Speaker 01:
All right, the privacy policy disclosed the collection.

[00:34:58] Speaker 01:
The consent bump disclosed it.

[00:35:00] Speaker 01:
The account holder agreements.

[00:35:02] Speaker 01:
Plaintiffs clicked, I agree.

[00:35:03] Speaker 01:
The privacy policy, the consent bump, and the Chrome Privacy Notice disclosed this data collection as separate.

[00:35:09] Speaker 01:
The plaintiff's expert agreed that reasonable users would see these as two separate data flows.

[00:35:16] Speaker 01:
No person, no plaintiff here, no person ever in the record ever interpreted this language in the Chrome Privacy Notice

[00:35:24] Speaker 01:
to mean what the lawyers in this case argue that it means.

[00:35:29] Speaker 01:
That shouldn't be a basis to force a case to go to trial, a case that is really essentially made up for litigation, that someone thought SYNC was somehow a privacy policy.

[00:35:40] Speaker 01:
Nobody thinks that, and it would be unjust and inefficient to ask Google to stand trial for that.

[00:35:46] Speaker 01:
Unless they look at it holistically.

[00:35:47] Speaker 02:
I think if they looked at it holistically, they would understand exactly that the data they agreed gets collected was collected.

[00:36:02] Speaker 00:
I realize we're the last case on a Friday, so.

[00:36:06] Speaker 00:
Just a few quick points on rebuttal.

[00:36:08] Speaker 00:
Judge Johnstone, you asked about the sort of underlying source of the reasonable or ordinary user standard.

[00:36:15] Speaker 00:
I would point you to pages 30 and 31 of our brief where we discuss how the restatement adopts that approach, which California courts themselves follow.

[00:36:24] Speaker 00:
So I think that will give you the

[00:36:26] Speaker 00:
the doctrinal grounding for why we would ask what an ordinary person would understand.

[00:36:31] Speaker 02:
And specifically, and the restatement, what are you referring to?

[00:36:34] Speaker 00:
This is the tort restatement, section 892A sub 1, and the comment H, which discuss how consent works as a matter of tort law.

[00:36:46] Speaker 00:
I think, Judge Smith, your suggestion that you read these disclosures holistically is exactly correct.

[00:36:52] Speaker 00:
I think if you were to do that,

[00:36:54] Speaker 00:
attempting to discern what an ordinary person with no specific expertise would understand, you would come to one overarching conclusion, which is that, as Judge Bennett, you quoted, the Chrome Privacy Notice clearly tells users that their information will not be sent to Google unless they think that information is not somehow some very narrow, technical, limited amount of information.

[00:37:21] Speaker 00:
on that exact page, the personal information that's included.

[00:37:26] Speaker 00:
According to the Chrome Privacy Notice, it includes both browsing history, like URLs, what you type into Google as a search.

[00:37:33] Speaker 00:
It also includes cookies, which are the main kind of feature that actually track you around the internet.

[00:37:40] Speaker 00:
It tells users, we will not send that information, what you do on the internet, to Google unless you sync.

[00:37:47] Speaker 00:
There is nothing in any of the other documents, the privacy policy,

[00:37:50] Speaker 00:
the account agreements that says anything to the contrary.

[00:37:55] Speaker 00:
In fact, Judge Bennett, as you pointed out, the privacy policy repeatedly tells users exactly the same thing, that their information will not be sent unless they sink.

[00:38:04] Speaker 00:
I think this court could perform that inquiry very easily in its opinion, reverse the district court's decision, and set this case on for trial.

[00:38:14] Speaker 02:
So from your perspective, citing, for example, what my colleague did in ER 358,

[00:38:20] Speaker 02:
and restatement of torts, second and so on, that you feel state law buttresses your position as to what a reasonable user would understand.

[00:38:31] Speaker 02:
Sending it back to Judge Gonzalez-Rodgers really wouldn't help anything because ultimately it's a disputed issue.

[00:38:37] Speaker 00:
Correct.

[00:38:38] Speaker 00:
That's correct, Your Honor.

[00:38:38] Speaker 02:
And from your perspective, it's got to go to trial.

[00:38:41] Speaker 00:
Correct.

[00:38:42] Speaker 00:
Unless the court has any further questions.

[00:38:44] Speaker 00:
Other questions?

[00:38:45] Speaker 02:
I think not.

[00:38:46] Speaker 02:
Thanks to counsel.

[00:38:47] Speaker 02:
We appreciate it as you can appreciate that we live in a technical era and we get more and more of these cases and it's very helpful to us to have very learned and able counsel to help us as we work through this.

[00:38:59] Speaker 02:
So thank you for your argument.

[00:39:01] Speaker 02:
The case just argued is submitted.