“reset your browser to refuse all cookies.”126 Google further
assured Safari users specifically that their cookie blockers
meant that using Google’s in-house prophylactic would be
extraneous. Characterized by deceit and disregard, the alleged
conduct raises different issues than tracking or disclosure
alone.127
Directly pertinent to whether Google’s alleged
practices implicated a protected privacy interest, California
tort law treats as actionable an “unwanted access to data by
electronic or other covert means, in violation of the law or
social norms.”128 Moreover, the California Constitution
protects an interest in “conducting personal activities without
observation,” with the reasonableness of any given
expectation “rest[ing] on an examination of customs . . . as
well as the opportunity to be notified in advance and consent
to the intrusion.”129 To Google’s point, a sophisticated
126
Compl. ¶ 80.
127
See Kristen Lovin, SafariGate: Benign Behavior or
Malignant Breach?, Colum. Sci. & Tech. L. Rev. (Feb. 22,
2012), http://stlr.org/2012/02/22/safarigate-benign-behavioror-malignant-breach/ (“[O]ne could say that Google ignored
the express desires of its users, elevating its own commercial
interests over the user’s personal privacy interests. This kind
of disregard may be particularly troubling given the relative
bargaining power that an individual consumer has against a
monolith like Google.”).
128
Hernandez, 211 P.3d at 1072 (internal quotation marks
omitted).
129
Id. at 1073 (internal quotation marks omitted).
54
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