Google argued the plaintiffs did not suffer an injury because they could not plausibly sell their individual data on the open market, but the California Supreme Court recently ruled individual data has value and that plaintiffs should have standing if technology companies use theirs without permission. Regarding the unfair competition claim, Koh said the case could go forward because plaintiffs have plausibly lost money or property as a result of Google’s use of the data collected despite the use of incognito mode. Google then filed a motion to dismiss related to those two claims specifically, and Koh ruled both should advance. After that order, the plaintiffs added a breach of contract claim and said Google also violated California’s state law governing unfair competition. The order came down late Wednesday and expands a previous denial issued by Koh this past March. “Google’s privacy policy, which Google concedes was part of the contract, expressly stated in an ‘Introduction’ section that plaintiffs could ‘choose to browse the web privately using Chrome in Incognito mode.’” “A reasonable user could conclude that plaintiffs’ contract with Google incorporated the Incognito splash screen,” Koh wrote in a 31-page order denying the motion to dismiss. District Court Judge Lucy Koh, in likely one of her last rulings before moving to the Ninth Circuit, said if Google did track people and sell their data while they were in incognito mode, then the company breached its contract with users.
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