Common Law Tort of Intrusion Upon Seclusion Revitalized in Internet Age

In the past year, the federal law claims in two cases involving Google’s cookie collection practices have been dismissed.  Federal Wiretap Act, Stored Communications Act and Computer Fraud and Abuse Act claims against Google were dismissed in In re: Google Inc. Cookie Placement Consumer Privacy Litigation.  Federal Wiretap Act, Stored Communications Act and Video Privacy Protection Act claims were dismissed in In re: Nickelodeon Consumer Privacy Litigation.  Left standing in both cases were the state law intrusion upon seclusion claims.  Intrusion upon seclusion is one of the four privacy torts arising out of litigation during the years following the 1890 Warren and Brandeis article, The Right to PrivacyThe Right to Privacy brought public awareness to the need to protect individual privacy and provided a legal basis for doing so.  Public disclosure of private facts, false light and appropriation are the other three common law privacy torts. 

With all of the federal and state statutes that have been enacted specifically addressing computers and online activity, who would have thought that the analog age tort of intrusion upon seclusion would swoop in like a super hero to act as the vanguard for online consumer privacy rights?  

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State Law Privacy Claims Still Baking in Google Cookie Suit

Consumers brought a class action case against Google, alleging that Google placed tracking cookies on users’ web browsers by disabling users’ cookie blockers, in contradiction to Google’s privacy policy statements.  In particular, users allege that Google discovered and surreptitiously exploited loopholes in the Safari cookie blocker and the Internet Explorer cookie blocker.  But on its public webpage describing how to block cookies, “Google assured visitors that ‘Safari is set by default to block all third party cookies. If you have not changed those settings, this option essentially accomplishes the same thing as setting the opt-out cookie.’” (Opinion pdf pages 8-9).  Google’s private actions allegedly contradicted its public statements.

The users alleged a number of federal and state law violations by Google.  The district court dismissed all claims against Google.  The Third Circuit reversed as to the California Constitution privacy and California tort law intrusion upon seclusion claims.  This post discusses only those two state law claims.

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