internet user may well have known that, in browsing the
internet, her URL information was sent to Google. But such a
user would also reasonably expect that her activated cookie
blocker meant her URL queries would not be associated with
each other due to cookies.130 As the activated cookie blocker
equates, in our view, to an express, clearly communicated
denial of consent for installation of cookies, we find Google
“intru[ded] upon reasonable expectations of privacy.”131
As for whether the alleged conduct is “so serious in
nature[] [and] scope . . . as to constitute an egregious breach
of the social norms,”132 Google not only contravened the
cookie blockers—it held itself out as respecting the cookie
blockers. Whether or not data-based targeting is the internet’s
pole star, users are entitled to deny consent, and they are
entitled to rely on the public promises of the companies they
deal with. Furthermore, Google’s alleged conduct was broad,
touching untold millions of internet users; it was
surreptitious, surfacing only because of the independent
130
It is no matter whether or not a given plaintiff had actual,
subjective knowledge of her browser settings and the impact
of those settings on the defendants’ tracking practices. Like a
principal’s agent, a personal computing device acts as an
extension of oneself for purposes of engaging with the
internet. The decision to use one or another technology is the
decision to choose its features, even if the lay user may not
actually know what all those features are in their specifics.
131
Hernandez, 211 P.3d at 1074.
132
Id. at 1073 (internal quotation marks omitted).
55
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