Exploiting loopholes in Internet users’ cookie-blocking settings while claiming to protect them from cookies is a serious and deceitful invasion of privacy, the Third Circuit held November 10.

Ruling on an appeal from consumer plaintiffs, whose multi-district litigation against Google and several other companies that run Internet advertising businesses was dismissed in Delaware District Court, the Third Circuit in In re Google Inc. Cookie Placement Consumer Privacy Litigation affirmed the dismissal of the federal law claims and some state law claims, but kept the California privacy claims alive. When Google told users in its Privacy Policy that using the cookie blockers in the Safari and Internet Explorer browsers was effective, and then took advantage of loopholes in those blockers to allow the placement of cookies, it was deceptively engaging in actionable invasion of privacy under California law, the court held.  

“Characterized by deceit and disregard, the alleged conduct raises different issues than tracking or disclosure alone,” the court wrote.

The district court had dismissed the state privacy claims because it did not consider Google’s conduct to be so serious as to be “highly offensive” or to constitute “an egregious breach of the social norms.” But the Third Circuit stated that Google’s surreptitious hoodwinking of “untold millions of internet users” did rise to that level.

The court ruled that the defendants had not violated the Wiretap Act, Stored Communications Act, and the Computer Fraud and Abuse Act, and similarly affirmed dismissal of claims under the California Invasion of Privacy Act and other state laws.

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