In class actions challenging data collection, whether the defendant’s privacy policy disclosed the collection is almost always a key question at the dismissal stage.  In a memorandum decision likely to be useful to defendants, the Ninth Circuit recently affirmed dismissal of claims challenging Google’s collection of data from third-party apps on its Android mobile operating system, holding that Google’s Privacy Policy clearly disclosed the collection.  See Hammerling v. Google LLC, No. 22-17024 (9th Cir. Mar. 5, 2024) (unpublished).

Google argued in the district court that its Privacy Policy (1) defined “services” to include its Android operating system and (2) disclosed that Google collected data about users’ activities on “third party sites and apps that use our services.”  As a result, Google argued that the Privacy Policy disclosed data collection from all apps, because all apps on a Google phone necessarily use the Android operating system.  Hammerling v. Google LLC, 615 F. Supp. 3d 1069, 1083 (N.D. Cal. 2022).  The district court found that it was plausible a consumer could understand the disclosure differently and declined to resolve the question on a motion to dismiss, though it dismissed the claims on other grounds.

The Ninth Circuit affirmed the dismissal based on the Privacy Policy’s disclosure, disagreeing with the district court about whether it was ambiguous.  The Ninth Circuit emphasized that “where a contract expressly defines a term, we cannot reject that definition simply because it may deviate from our expectations.”  Because the Privacy Policy defined “services” to include the Android operating system, the Ninth Circuit held that “[r]ead in the context of the Policy as a whole, the phrase ‘apps that use [Google’s] services’ unambiguously discloses Google’s collection of user activity data in third-party apps.”  All of plaintiffs’ claims failed as a result, either because there was no misrepresentation, no breach of contract, or no reasonable expectation of privacy in data whose collection was disclosed.  Last, the Ninth Circuit ruled that plaintiffs could not pursue an implied contract in the alternative because there was an express contract governing the same subject.

This decision is likely to be useful for defendants relying on privacy policies or other disclosures on a motion to dismiss.