## Facts

- Consumers brought consolidated putative class actions against Google LLC and Alphabet Inc. alleging unlawful interception, recording, retention, disclosure, and use of private conversations through Google Assistant–enabled devices.
- Google Assistant is voice-activated and “always listening” for hotwords (e.g., “Hey Google”) by processing short audio snippets locally; upon detecting a hotword it enters “active listening” and records audio to fulfill commands.
- Plaintiffs alleged the Assistant frequently “false activated,” mistakenly treating other words as hotwords and recording conversations unintentionally, including inside homes.
- Plaintiffs alleged Google’s disclosures stated audio may be recorded when using voice features but did not clearly inform users that recordings could be triggered by unintentional activations.
- Plaintiffs alleged Google retained and used recordings not only to perform requested tasks but also (1) for personalized advertising and (2) to improve voice recognition.
- Plaintiffs alleged thousands of users and household members/visitors were affected, including non-users who never agreed to Google’s terms and were unaware of recording.
- The operative complaint asserted claims including the Federal Wiretap Act, Stored Communications Act, California Invasion of Privacy Act, California constitutional privacy, intrusion upon seclusion, breach of contract, and California Unfair Competition Law.
- Google moved to dismiss the Third Consolidated Amended Complaint under Rule 12(b)(6).

## Issues

1. Whether plaintiffs plausibly alleged Article III standing based on privacy injuries from alleged secret interception/recording and economic injury from alleged overpayment for devices.
2. Whether alleged terms, policies, and product disclosures established consent or otherwise defeated claims premised on lack of consent and reasonable expectations of privacy, particularly for false activations and non-users.
3. Whether allegations of false-activation recordings and secondary uses plausibly stated claims under the Federal Wiretap Act, Stored Communications Act, CIPA, California constitutional privacy, and intrusion upon seclusion.
4. Whether contract, fraud-based, and UCL theories were adequately pleaded, including the level of specificity required for deception-based theories.

## Decision

- The court granted Google’s motion to dismiss in part and denied it in part.
- The court held plaintiffs plausibly alleged concrete privacy injury from surreptitious interception/recording of private conversations, especially in the home, sufficient for Article III standing at the pleading stage.
- The court held plaintiffs plausibly alleged economic injury based on an overpayment theory tied to alleged nondisclosure of recording and data-use practices.
- The court treated consent and the effect of Google’s disclosures as fact-bound for several theories, allowing claims to proceed where plaintiffs plausibly alleged disclosures did not cover false activations and certain secondary uses.
- The court allowed multiple statutory and common-law privacy claims to proceed on narrowed theories focused on unintended recordings and allegedly undisclosed secondary uses, while dismissing other claims or theories (often with leave to amend) where pleading deficiencies existed, including for some deception- and contract-based theories.

## Legal Principles

- Alleged secret interception and recording of private conversations can constitute a concrete privacy injury for Article III standing, particularly when occurring in the home.
- An overpayment allegation based on claimed nondisclosure or misrepresentation about product features or data practices can constitute economic injury at the pleading stage.
- Consent derived from terms, policies, or settings may not defeat privacy claims where plaintiffs plausibly allege the disputed practice (e.g., false activations or specific secondary uses) was not reasonably disclosed to users or did not involve assent by non-users.
- At the pleading stage, allegations that a provider systematically captured unintended communications and retained/used them for purposes beyond task fulfillment can be sufficient to state claims under federal and state privacy statutes, depending on the elements of intent, consent, and use/disclosure.
- Intrusion upon seclusion may be stated by alleging intrusion into private conversations in private settings, in a manner that could be found highly offensive, including where recordings are allegedly used for commercial purposes.
- Deception-based theories must satisfy heightened pleading requirements when applicable, including identifying the challenged statements/omissions and plausibly alleging reliance and causation.

## Conclusion

The court permitted the litigation to proceed past the pleading stage on key theories that Google Assistant false activations caused unintended recordings and that Google used retained audio for undisclosed secondary purposes, while narrowing or dismissing inadequately pleaded contract and deception-related theories.


In re Google Assistant Priv. Litig., 546 F. Supp. 3d 945 (N.D. Cal. 2021)