intrusion is so serious ‘in nature, scope, and actual or
potential impact as to constitute an egregious breach of the
social norms.���”116
When presented with parallel privacy claims under tort
law and the California Constitution, the California Supreme
Court has performed a dual inquiry “under the rubric of both .
. . tests.”117 This “consider[s] (1) the nature of any intrusion
upon reasonable expectations of privacy, and (2) the
offensiveness or seriousness of the intrusion, including any
justification and other relevant interests.”118 In evaluating the
offensiveness of an invasion, the court is to consider
“pragmatic policy concerns” such that “no cause of action
will lie for accidental, misguided, or excusable acts of
overstepping upon legitimate privacy rights.”119
In dismissing the freestanding privacy claims, the
District Court concluded that Google’s alleged practices “did
not rise to the level of a serious invasion of privacy or an
egregious breach of social norms.”120 Contending the District
116
Id. (quoting Hill v. Nat’l Collegiate Athletic Assn., 865
P.2d 633, 655 (Cal. 1994)).
117
Id. at 1073-74.
118
Id. at 1074.
119
Id. at 1079; Hill, 865 P.2d at 675 (“Whether [a] plaintiff
has a reasonable expectation of privacy in the circumstances
and whether [a] defendant’s conduct constitutes a serious
invasion of privacy are mixed questions of law and fact.”).
120
In re Google, 988 F. Supp. 2d at 449.
52
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