Weber v. Google, Inc.

Filing 26

*** FILED IN ERROR. REFER TO DOCUMENT 27 . *** AMENDED COMPLAINT against Google, Inc.. Filed byJason Weber. (Stampley, David) (Filed on 3/17/2011) Modified on 3/17/2011 (feriab, COURT STAFF).

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Weber v. Google, Inc. Doc. 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Scott A. Kamber (pro hac vice) skamber@kamberlaw.com David A. Stampley (pro hac vice) dstampley@kamberlaw.com KamberLaw, LLC 100 Wall Street, 22nd Floor New York, New York 10005 Telephone: (212) 920-3072 Facsimile: (212) 920-3081 Avi Kreitenberg (SBN 266571) akreitenberg@kamberlaw.com KamberLaw, LLP 1180 South Beverly Drive, Suite 601 Los Angeles, California 90035 Telephone: (310) 400-1050 Facsimile: (310) 400-1056 Attorneys for Plaintiff UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION JASON WEBER, Individually and On Behalf of a Class of Similarly Situated Individuals, Plaintiff, v. GOOGLE INC., a Delaware Corporation, Defendant. CASE NO: 10-CV-05035 LHK JURY DEMAND FIRST AMENDED CLASS ACTION COMPLAINT FOR VIOLATIONS OF: 1. ELECTRONIC COMM. PRIVACY ACT, 18 U.S.C. 2510 2. COMPUTER FRAUD & ABUSE ACT, 18 U.S.C. 1030 3. CAL. BUS. & PROF. CODE 17200 1. CAL. CIV. CODE 1750 4. UNJUST ENRICHMENT 5. CONVERSION Plaintiff Jason Weber ("Plaintiff"), through his attorneys, KamberLaw, LLC, brings this complaint on behalf of himself and all other similarly situated individuals (each a "Class Member" of the putative "Class"). The allegations in this complaint about his actions and observations are based on his own personal knowledge. The other allegations he makes in this First Amended Class Action Complaint 1 Case No: 10-CV-05035 LHK Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 complaint are based on information he has learned through his attorneys and that he believes is true. He believes these other allegations will be supported by substantial evidence that will result from discovery and further investigation in this matter. I. NATURE OF THE CASE 1. This action arises out of Plaintiff's downloading and use of software provided by Google, known as the Google Toolbar ("Toolbar"), designed to aid users in searching and browsing the web. For some of Toolbar's features to work, such as features to display additional information about the web page the user is viewing, Toolbar transmits to Google certain information about the user's web activity, including the specific pages the user views. 2. Despite Google's claim that a user can maintain web-browsing privacy by dis- abling these features, including temporarily, Google's statements have been incorrect. In reality, the functions that supposedly turned off Toolbar or its transmission features only turned off the display of Toolbar in the user's browser window. Toolbar itself continued to function in the background, transmitting to Google the address of every web page viewed by the user, along with information that identified the individual user. 3. For many months, Google knew about serious discrepancies between what it said about Toolbar and how Toolbar actually functioned. However, Google failed to take any corrective action until late January of this year, after publicity revealed the details of Toolbar's improper data collection. Google still has not taken steps to purge the improperly collected and highly personal data that Toolbar improperly collected. II. JURISDICTION AND VENUE 4. The Court has subject-matter jurisdiction over this case pursuant to 28 United States Code, Section 1332, subsections (a) and (d)(2). Plaintiff and Defendant are citizens of different states and the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. In addition, this Complaint alleges claims on behalf of a national class of individuals who are minimally diverse from Defendant. The amount in controversy exceeds $5,000,000.00 exclusive of interest and costs. The class consists of more than one hundred First Amended Class Action Complaint 2 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 members. 5. This Court has federal subject-matter jurisdiction over this action pursuant to 28 United States Code, Section 1331 as this action arises in part under federal statutes. 6. This Court has supplemental subject-matter jurisdiction over the pendent state law claims under 28 United States Code, Section 1367. 7. Venue is proper in this jurisdiction pursuant to 28 United States Code, Section 1391 because Defendant Google is a corporation headquartered in Santa Clara County, California and, therefore, resides in this judicial district. 8. In addition, venue is proper in this jurisdiction because a substantial part of the events or omissions giving rise to the claims asserted in this complaint occurred in, were directed from, and emanated from within this judicial district. III. PARTIES 9. Plaintiff Jason Weber is a resident of Kings County in the State of New York and has at all times relevant to the complained-of conduct has been a Google Toolbar user. 10. Defendant Google Inc. ("Google") is a Delaware corporation with its principal place of business in Santa Clara County at 1600 Amphitheatre Parkway, Mountain View, California 94043. Google's presence spans the globe. It operates hundreds of thousands of servers in data centers worldwide. In addition, Google maintains at least 23 office locations in the United States with offices in 39 other countries. IV. STATEMENT OF FACTS 11. Google makes money by showing advertisements to Internet users. In 2009, 97 percent of its nearly $24 billion in revenue came from advertising, the same proportion as 2008. 12. Consumers who choose to interact with Google do so main by using its popular search engine. However, Google interacts with consumers on a far greater scale, by displaying ads on millions of websites, some of which are its syndicated search partners and millions more of which are third-party web sites that make up the "Google Network." 13. In addition, Google displays online advertisements in the course of providing First Amended Class Action Complaint 3 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 over 40 Google-branded services and software offerings, such as its search engine and webbased applications such as GMail, YouTube, and Google Docs; mobile device versions of Google services; and downloadable software such as Toolbar. 14. Toolbar is software that users can download from the Internet and install on their personal computers to help them browse websites. 15. Google reportedly told PC World that Toolbar runs on "hundreds of millions" of computers. "Google Toolbar Tracks Some Browsing Even When It's Not Supposed To," PC World, Jan. 25, 2010, http://www.pcworld.com/article/187670/google_toolbar_tracks_some_browsing_even_when_its_not_supposed_to.html (last visited Feb. 15, 2010). A. Google's Collection and Retention of User Information 16. With products such as Toolbar, Google acquires a great deal of information about users' Internet activities, adding to the already substantial information it acquires by providing a search engine, network advertising, and more. However, as detailed in the Statement of Facts, below, Google does not adequately or accurately disclose the extent of its collection of Toolbar users' data; Google does not fulfill its own promises to provide timely disclosure and opt-out mechanisms; and the opt-out mechanisms Google has offered have not always functioned as advertised. As further detailed in this complaint, the net effect is that many users transmit information about themselves and their online activities to Google that they intended to keep private. 17. Once installed on a user's personal computer, Toolbar appears near the top of the user's web browser display as a row that includes a fill-in box for performing Google searches, as well as several buttons that activate Toolbar's basic features such as spell-checking and web page language translation. See Figure 1, below. Figure 1. Toolbar appearance First Amended Class Action Complaint 4 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18. Toolbar routinely transmits to Google certain information about a Toolbar user including: (a) the identifying and tracking information that is stored in Google's cookies on the user's computer; (b) the IP address that uniquely and persistently identifies the user's specific personal computer; (c) the unique application number(s)--essentially serial numbers--unique to the particular Toolbar software installed on a given computer. 19. If a user activates certain "advanced features" of Toolbar, Toolbar transmits to Google the full Uniform Resource Locator ("URL") of every web page requested by the user, including full path information. The path information that follows the domain name in a URL identifies the specific web page or Internet resource requested by a user. By analogy to a library book, URL information is equivalent to identifying which book and which page in that book was viewed by a reader. See, e.g., Figure 2, below. URLs may reveal a user's inquiries about medical, political, religious, cultural, or financial matters. Figure 2. Sample URLs containing path information Underscore = path information Page title = text typically displayed in browser window upper left corner (a) http://clinicaltrials.gov/ct2/show/NCT00809445 Page title: "Rapid HIV Testing and Counseling Full Text View Clinical Trials.gov" (b) http://da.co.la.ca.us/domv.htm Page title: "LADA Domestic Violence Hotline" (c) http://www.msnbc.msn.com/id/21478416 Page title: "Which is worse: foreclosure or bankruptcy? Answer desk msnbc.com?" (d) http://www.cs.uiowa.edu/ejjung/courses/f08196/lectures/deanonymization.pdf Page title: "Robust De-Anonymization of Large Sparse Datasets" (e) http://www.saintmichaelschurch.org/connect/aa.html Page title: "St. Michael's Church New York" (Alcoholics Anonymous and AL-ANON meeting information) (f) http://www.medscape.com/viewarticle/702506_4 Page title: "Evaluation and Treatment of Torture and Refugee Trauma: Mental Health Treatment for Torture Survivors" First Amended Class Action Complaint 5 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20. (g) http://www.wfmz.com/news/22406766/detail.html Page title: "Some Fear Not Enough Being Done To Protect Illegal Immigrants In Census Collection News Story WFMZ Allentown" Path information is not the only revealing content that may be included in a URL. Often, a URL includes additional information called a "query string." A query string is a set of instructions telling a website what information to display on the selected web page. 21. For example, search engines often display results as a web page, the URL of which contains the user's search criteria embedded as a query string. A URL's query string may include personal, sensitive, or confidential information. See, e.g., Figure 3, below. 22. For example, users often perform searches on their names or their credit card, social security, or unlisted phone numbers to see if their personal information is available on the Internet or to investigate identity theft. See Gonzales v. Google, Declaration of Matt Cutts [Google Senior Staff Software Engineer] at 9, Case No. 5:06-mc-80006-JW (N.D. Cal., Feb. 17, 2006). In addition, users often mistakenly enter passwords or other account credentials in a search box. Figure 3. Sample URLs containing website name + query string Underscore = query string Bold = search term and/or personal information (a) http://208.114.97.178:1111/usg/process?username=01894484DB-SMITH8016&password=12345&RLF=http://portal.ICServices.mtnsat.com/err.aspx &OS=CAFE.SEAMOBILE.COM Page title: "process" (unencrypted shipboard wireless account login that includes username and password in clear text) (b) http://www.altavista.com/web/results?itag=ody&q=%2Bgovernment %2Bdomestic%2Bsurveillance%2Bpolitical%2Baction&kgs=1&kls=0 Page title: "Alta Vista Search:government domestic surveillance political action" (c) http://answers.yahoo.com/question/index?qid=20100202164829AAhRrJF Page title: "Can I get birth control at 16 without parental consent?" First Amended Class Action Complaint 6 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (d) http://assignments.uspto.gov/assignments/q?db=pat&asnrd=JONES, JAY, MS. Page title: "USPTO Assignments on the Web" (search of government database for patent assignments by Jay Jones) (e) http://newyork.craigslist.org/search/m4m/mnh?query=nonsmoker&catAbbr eviation=m4m&minAsk=35&neighborhood=124&hasPic=1 Page title: "new york men seeking men classifieds craigslist" (search of Manhattan personals ads containing the word "nonsmoker" posted by persons over 35 or older in the Soho area and whose ads include images) (f) http://web2.westlaw.com/search/default.wl?tc=1001&rltdb=CLID_DB9999999999&db=NY-CS-ALL&sv=Split&eq=search&tf=2004&method=TNC&action=Search&query=breach+/3+privacy&mt=297 &fn=_top&vr=2.0&rp=/search/default.wl&ifm=NotSet&rs=WLW9.11 Page title: "Search - NY-CS-ALL - BREACH /3 PRIVA" (search of legal database for court cases in a particular jurisdiction and containing certain words) (g) http://www.linkedin.com/ppl/webprofile?action=vmi&id=99999999&pvs=pp&authToken=QQCI&authType=name&trk=ndir_viewmore&lnk=vw_pprofile Page title: "Profile | LinkedIn" (request to view a particular member profile on a social network website) 23. Google admits that it receives personally identifying information contained in search queries and URLs transmitted by Toolbar. Google Inc., Google Toolbar Privacy Notice, http://toolbar.google.com/privacy.html (last visited Feb. 15, 2010) ("[I]t is possible for ... queries [and] page addresses ... to contain such [personally identifying] information"). 24. Google also acknowledges that the query string portion of a URL can typically be identified by the question mark character preceding it (underscored in Figure 3, above). 25. Despite the fact that Toolbar could easily discard the query string portion of a URL before transmitting the URL to Google servers, Google offers no explanation for its failure to do so. 26. Google's Terms of Service require each user to grant Google a broad, perpetual, and irrevocable license to use user-provided content in its business and to transfer such content to third parties of Google's choosing. See Google Inc., Terms of Service, "Content Licence from First Amended Class Action Complaint 7 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 You," 11.1-11.2, http://www.google.com/accounts/TOS (last visited Mar. 16, 2010). In addition to Google's use and sharing of data permitted by its Terms of Service, user data retained by Google may pose user consequences that lie outside Google's control. 27. For example Toolbar data is subject to disclosure in civil proceedings and under government subpoena. See, e.g., Gonzales v. Google, Inc., 234 F.R.D. 674, 688 (N.D. Cal. 2006) (order denying Justice Department's motion to compel Google to comply with subpoena of 5,000 search queries but granting motion to compel disclosure of 50,000 URL requests). 28. Google's practices regarding user data and privacy are of public interest and are highly material to consumers in their decisions to use Google services and software in light of: (a) the massive amounts of user data Google acquires as the leading search service provider; (b) the personal and often sensitive content of some of that data; (c) Google's apparently unfettered retention and use of the user data it receives; and (d) the potential for Google's disclosure of user data to third parties. 29. In the case of Toolbar, this materiality is further borne out by the fact that Goo- gle, itself, purports to disclose its data practices and mechanisms for users to exercise choice and control over what data is transmitted to Google. 30. In fact, Google specifically promises users that they can control the operation of certain Toolbar features with special privacy consequences. In particular, Google promises that these features "only operate and transmit data if you choose to enable them." Google Inc., Google Toolbar--Toolbar Help--Review Privacy Details: Enhanced Features, http://www.google.com/support/toolbar/bin/answer.py?hl=en&answer=162423 (last visited Feb. 16, 2010). Furthermore, Google's Privacy FAQ promises: Some Google services (such as Google Toolbar) enable you to opt-in or opt-out of sending URLs to Google . . . . When you sign up for any such service, you will be informed clearly that the service sends URLs to Google, and whether and how you can opt-in or opt-out. Google Inc., Privacy FAQ, http://www.google.com/privacy_faq.htm (last visited Feb. 15, 2010) (emphasis added). First Amended Class Action Complaint 8 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31. As a result, it is also material to Toolbar users that--as detailed below--Google has provided users inadequate and misleading disclosures regarding Toolbar and the control mechanisms that purport to implement user's Toolbar preferences. Unbeknownst to users, these controls do not work as described. B. Google's Inadequate and Misleading Statements about Toolbar (i) Retrogression in Installation Notice and Choice 32. At one time, users installing Toolbar received clear and conspicuous notice that their installation choices could have privacy consequences. Recognizing the material privacy implications, Google specifically drew users' attention to this important decision with forceful red text at the top of the screen. Users could activate Toolbar's "advanced," URL-transmitting features only through an opt-in process, and the selection buttons to opt in or not opt in were presented with equal prominence. See 2004 version of Toolbar installation dialog, Figure 4 on page 9. Neither option operated as a default selection that would be activated merely by pressing the space bar or Enter key. By labeling Toolbar's URL-transmitting features as "advanced" features and by activating them only upon a users unambiguous, affirmative request, Google properly presented these features as suitable for knowledgeable users. Figure 4. 2004 version of Toolbar installation dialog box First Amended Class Action Complaint 9 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Figure 5. Toolbar installation (a) "enhanced" vs. "advanced" (b) "site" vs. "URL" (c) link to misleading privacy policy (d) "enhanced" features default 33. Some Google pages still retain this more appropriate, "advanced features" label for Toolbar's URL-transmitting features. Indeed, Toolbar's Help pages continue to use this label. See, e.g., "Learn More--Master Advanced Features." Google Inc., Google Toolbar Help, http://toolbar.google.com/privacy.html (last visited Feb. 15, 2010). 34. However, aside from these remnants, Google has renamed Toolbar's URL- transmitting Toolbar features as "enhanced features" (emphasis added), falsely suggesting that these features are desirable and beneficial for all users. 35. In addition, Google's new Toolbar installation process makes it excessively easy for users to enable Toolbar's advanced features, such as PageRank. For example, Google bills Toolbar as a quick installation (Google promises the Toolbar "installs in seconds"), a process in First Amended Class Action Complaint 10 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which users in which users cannot reasonably be expected to be aware of the significant and long-lasting privacy-sensitive consequences. 36. Further, the very design of Google's enhanced-features prompt increases the like- lihood that users will make an uninformed decision. Google presents a bold-faced heading and three sentences of supposed benefits before finally discussing the crucial privacy detriments of advanced features. See Figure 5, page 10, above. 37. Even where Google finally does discuss privacy, Google's text is both internally inconsistent and misleading: Google's installation prompt states, "For enhanced Toolbar features to work, Toolbar has to tell us what site you're visiting by sending Google the URL" (emphasis added). See Figure 5, note (b) on page 10, above. This sentence conflates the concept of "site" (the general address of a web server or domain, as a whole) and "URL" (a specific, individual document or request) trivializing the privacy consequences of activating Toolbar's enhanced features. 38. Other aspects of the design of Google's enhanced features prompt further impair users' decision-making on this screen. a. The prompt includes a link labeled "privacy policy." See Figure 5, note (c), page 10, above. However, the Privacy Policy link takes the user to a pop-up display which does not provide the user with the options to search, copy, save or print the lengthy policy. Yet the document discusses advanced Toolbar features only in the 19th paragraph, a location few users are likely to find. Even then, the document misleadingly states: Enhanced Toolbar features Toolbar's enhanced features, such as PageRank and Sidewiki, operate by sending Google the addresses and other information about sites at the time you visit them. When you use Sidewiki to write, edit, or rate an entry, the URL of the relevant page, the type of action you performed and the text related to that action are sent to Google and stored with your Google Account. Your Sidewiki entries are publicly viewable and associated with your Google profile. Google Inc., Google Toolbar Privacy Notice, http://toolbar.google.com/-privacy.html (referring First Amended Class Action Complaint 11 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to "enhanced features") (last visited Feb. 15, 2010) (italics added). b. The first bullet, above, describes transmission of "the addresses" of "sites" users visit--again falsely implying that Toolbar transmits mere domain names, not full URLs that include path and query string information. c. The second bullet mentions transmission of URLs to Google, but only in reference to Sidewiki, not PageRank--indicating, inaccurately, that only if a user uses Sidewiki to write, edit, or rate an entry will a web page URL be transmitted. Like the installation dialog box, this buried discussion of PageRank masks and misrepresents the fact that Toolbar transmits to Google the full URL of each web page visited by a user who has enabled advanced features. d. The installation prompt presents a button to "enable enhanced features" with bold type, more than twice the size of the button labeled "no thanks." See Figure 5, note (d), page 10, above. A user who responds to the installation prompt by merely pressing the enter key or tapping the space bar is taken to have accepted PageRank, purportedly authorizing Google to capture the URL of every single web page the user visits, without further notice or confirmation of any kind. e. Furthermore, users are particularly unlikely to make informed decisions at the conclusion of Toolbar installation: the Toolbar has appeared on-screen, by all indications allowing the users to get back to work without further questions from Google. A privacysensitive question asked at this time invites users to make a hasty and ill-considered decision. 39. By choosing the misleading "enhanced" name for the privacy-invasive Toolbar features, by explaining these features with the deficient, inaccurate, and deceptive disclosures described above, and by positioning these features for activation with a single accidental tap of the space bar, Google induces users to disclose URL communications they would not have disclosed had they been adequately informed of the consequences and had they been granted a proper means to grant or withhold consent. 40. Compared to 2004, installation disclosures regarding the privacy implications are now dramatically less clear, less conspicuous, and the advanced features choice less robust. First Amended Class Action Complaint 12 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Google's current installation process minimizes the apparent significance of privacy-affecting Toolbar functions and decreases the likelihood that users will fully comprehend the privacy consequences of Toolbar installation. C. Defective Documentation Impairs Users' Ability to Disable Enhanced Features 41. Despite promising to provide timely disclosure of Toolbar's URL-transmitting features and an effective mechanism to enable or disable such features, Google fails to provide the promised information and mechanisms. Its Help Center links that purport to explain how to disable PageRank and Toolbar or uninstall Toolbar do not provide such information. 42. to turn back. (i) Defective Toolbar Disabling Functions through January 26, 2010 43. With no meaningful instructions from Google, users who want to manage ToolThus, once a user has enabled Toolbar's advanced features, Google makes it hard bar's URL-transmitting features, such as PageRank, are on their own--a particular burden on novice users more likely to have been induced by Google to activate enhanced features. 44. Seeking a method to control the Toolbar, a user might reasonably look to the Toolbar itself, as it appears in the user's browser window. Consistent with standards for browser "plug-in" software, the Toolbar display includes an "X" button in one corner. See, Figure 6, below. This "X" is widely understood to mean "exit" or "disable." Figure 6. Toolbar display (arrow indicates exit / disable button) First Amended Class Action Complaint 13 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 45. If a user clicks the "X" in the Toolbar display, Toolbar pops up a dialog box that offers choices consistent with what a user would reasonably expect: the dialog box unambiguously offers the user the option of disabling "Toolbar and its features" solely for the user's currently active browser session or disabling Toolbar permanently. The dialog box also includes the message, "To restore Google Toolbar, right-click in an empty area at the top of the browser and select Google Toolbar." See Figure 7, below. Figure 7: Disabling Toolbar--confirmation screen 46. However, through January 26, 2010, the statements in the dialog box were un- true. Independent tests show that clicking the "X" button did not actually exit or disable Toolbar. Rather, the "X" button only hid Toolbar from view. Meanwhile, Toolbar continued to collect and transmit data about user Internet activity to Google's servers. See Benjamin Edelman, "Google Toolbar Tracks Browsing Even After Users Choose `Disable'," Jan. 26, 2010, http://www.benedelman.org/news/012610-1.html (last visited Feb. 15, 2010). 47. Further, if a user of Internet Explorer 8 used the Manage Add-Ons tool to disable Google Toolbar, Toolbar continued to collect and transmit data in the background for the duration of the user's web-browsing session. 48. Toolbar also continued to collect and transmit data in the background even if a user disabled Toolbar through Internet Explorer's View-Toolbars or right-click options. If a user First Amended Class Action Complaint 14 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 right-clicked on an empty area of a toolbar, the user received the message shown in Figure 8, below, indicating that the toolbar "will be disabled." Yet Toolbar's transmissions continued unabated, in the background. Disabling of the Toolbar add-on did eventually take effect, but only after a browser restart. Id. Figure 8: Disabling Toolbar confirmation screen 49. Google did not advise users that they must restart their browser in order to actu- ally disable Toolbar, nor did Google prompt users to restart their browsers. This behavior did not comport with accepted browser and software configuration practices, which ordinarily notify a user when an additional step, such as a browser re-start or computer re-boot, is required for changes to take effect. Nor did this behavior comport with users' reasonable expectations. 50. Google staff knew about these defects as of November 2009 or earlier. However, rather than promptly fix the problem or at least notify users, Google failed to take corrective action until publicity revealed these defects on or about January 26, 2010. D. Interception of Content 51. Google Toolbar enables users to transmit and receive text, audio, and video con- tent consisting of data transmitted in whole or in part by wire, radio, electromagnetic, photoelectronic, or photooptical systems that affect interstate and/or foreign commerce. Users' communi- First Amended Class Action Complaint 15 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cations using Google Toolbar are therefore electronic communications and Google is a provider of an electronic communications service as those terms are defined in the Electronic Communications Privacy Act, Title 18, United States Code, Sections 2510(12, 15). See also Gonzales v. Google, Google's Opposition to the Government's Motion to Compel at 19, Case No. 5:06-mc80006-JW (N.D. Cal., Feb. 17, 2006) (in which Google acknowledges that its search services bring it within the Section 2510(15) definition of "electronic communications service provider"). 52. Accordingly, Google Toolbar is a device used to acquire the "contents" of com- munications, as that term is defined in the Wiretap Act, Title 18, United States Code, Section 2510(8), in that Google uses Toolbar and its networks to divert and transfer the substance, purport, and meaning of the communications to Google's networks. Therefore, Toolbar is used to "intercept" the contents of electronic communications, as that term is defined in the Wiretap Act, Title 18, United States Code, Section 2510(4). 53. Google Toolbar, which is designed to send transmissions to and receive trans- missions from Google's system, in combination with Google's system, which is designed to send transmissions to and receive transmissions from users' Google Toolbars, are devices and apparatuses used to intercept, retain, and transcribe in-transit electronic communications and are therefore "electronic, mechanical, or other device[s]" as defined in the Wiretap Act, Title 18, United States Code, Section 2510(5). 54. Upon information and belief, which Plaintiff expects discovery to confirm, Goo- gle was aware as early as autumn of 2009, if not before, that Toolbar had not been operating as described. Upon information and belief, Google chose not to remediate Toolbar until January 26, 2010, after an independent publication presented video evidence of Toolbar's undocumented operational characteristics' causing nonconsensual transmission of user data to Google. 55. Under some circumstances, Google is authorized to intercept users' communica- tions with other websites. However, whenever Toolbar continued to intercept and transmit users' activities to Google after those users' had correctly activated a command purporting to First Amended Class Action Complaint 16 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disable Toolbar and cause such transmissions to cease, Google knowingly and intentionally eavesdropped on and intercepted users' electronic communications captured by Toolbar and its networks. Google was not authorized to eavesdrop on and intercept the communications at issue. 56. Google's interception and eavesdropping was not in its normal course of business or a necessary incident to its rendition of services or protection of its rights or property. To the contrary, Google's interception and eavesdropping affected user data Google had explicitly committed not to intercept. 57. Each communication intercepted by Google was between a user and a particular website. Unless that website was Google-owned, Google was neither an originator nor recipient of the user communications intercepted by Google Toolbar and was not a party to such electronic communications as that term is used in the Wiretap Act, Title 18, United States Code, Section 2511(2)(d). (i) Computer Tampering and Contamination 58. Users' personal computers are computers used in and affecting interstate com- merce and communication and are therefore protected computers as defined in the Computer Fraud and Abuse Act, Title 18, United States Code, Section 1030(e)(2). 59. Google, through the operation of its systems and Google Toolbar, induced users to download Toolbar knowing that it could not be disabled as advertised but would, instead, continue to transmit user data even when users had taken proper action to disable it and when, to all appearances, it was disabled. Google did so knowingly and with the intent of acquiring such data, and so Google's offering of Toolbar, its deceptive help screens and dialogs, and its operation in tandem with Google's system constituted intentional conduct to defraud users by Google's access of their personal computers, through Toolbar, without authorization and in excess of any authorization. By means of such conduct, Google furthered its intended fraud of obtaining users' confidential Internet communications and, in fact, obtained such communications. 60. Google knowingly caused the transmission of a program, information, code, or First Amended Class Action Complaint 17 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 command in its distribution and operation of Google Toolbar operating in tandem with Google's systems. Through this conduct, Google intentionally caused damage to users' protected computers as follows: a. Google knowingly caused the installation of software that Google knew did not work as advertised, and that Google knew would enable it to acquire users' URLs, and to do so without authorization. Google lacked authorization in that users had not consented to the downloading, installation, and operation of software containing undisclosed functions to cause the transmission to Google of information that Google said its software would not transmit. b. Google knowingly subverted the operation of other software on users' computers, such as users' browser toolbar controls, Manage Add-Ons tools, and other mechanisms with which users would reasonably have expected to be able to disable Toolbar. Google did so without authorization, in that users had not consented to the downloading, installation, and operation of software containing undisclosed functions that were designed to prevent users from disabling toolbar and designed to interfere with the operation of users' browser management tools. (ii) Harm 61. 62. Plaintiff has used Toolbar for a number of years, with PageRank enabled. During the Class Period, Plaintiff has thought he was disabling Toolbar's data transmission functions by clicking the "X" symbol on the Toolbar display and selecting the option to disable Toolbar operation in the current browser window. 63. Plaintiff did not give Google consent to continue collecting his data after he dis- abled Toolbar. He was unware of its collection properties, and had he known of Google's continued collection of data after he disabled Toolbar, he would have taken further steps to attempt to prevent transmission of his information to Google had he known of Toolbar's data transmission properties. First Amended Class Action Complaint 18 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 64. Toolbar users engage in online economic exchanges with the provider, Google, exchanging their personal information for the provider's product and thereby reducing the cost they would otherwise have to pay. 65. Even when such transactions that do not involve the transmission of personally identifiable information, but merely personal information with which users are tracked in supposed anonymity, users engage in value-for-value exchanges by providing their information in exchange for ad-supported content and services. 66. A value-for-value exchange takes place, even when the provider's offerings are supported by advertising revenue, as are Google's. In those cases, the user becomes a participant in what is known as a two-sided business platform. On one side is one customer (the user), and on the other side is the advertiser. The web provider stands in middle, functioning as an intermediary between these two sets of customers. The users provide personal information and advertisers pay the provider/intermediary for access to the users' information. The provider's so-called "free" offerings are inducements to increase user participation, which, in turn, the provider parlays into increased advertising revenue. 67. Google itself acknowledges that it engages in a value-for-value exchange with users by stating, in its Terms of Use, section 17.3: "In consideration for Google granting you access to and use of the Services, you agree that Google may place such advertising on the Services."1 Two industry organizations that represent online advertising interests acknowledge the value exchange between users and providers of online offerings. The Interactive Advertising Bureau (IAB) recently observed that, without users' data, "users would encounter a severely diminished experience since they would lose out on the remarkable benefits provided by data sharing.1 Similarly, the Network Advertising Initiative (NAI) stated, "Instead of requiring visitors to register and pay a subscription fee, the operators of Web offerings subsidize their offerings with various types of advertising." The NAI noted behaviorally targeted ads rely on personal information furnished by users such as "registration information reflecting [users'] gender, age, or zip code; or alternatively, other potential interests of [users] inferred from prior Web activity, either on the publisher's site or elsewhere on the web."1 Thus, advertising industry spokespersons have acknowledged that users obtain value online because they exchange something of value--their personal information. First Amended Class Action Complaint 19 Case No: 10-CV-05035 LHK 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 68. Because Google engages in undisclosed and inadequately disclosed data collec- tion from Toolbar users, users do not receive the full value of their exchange. In essence, Google raises the ticket price for Toolbar, but instead of telling users, Google simply reaches into their pockets and extracts the undisclosed premium in the form of users' information. Because this is an undisclosed cost to users in the taking of their information that they use in value-for-value exchanges, Google practices impose an economic cost--and loss--on Toolbar users. 69. In addition, the undisclosed privacy and information transfer consequences of Google's practices impose costs on users in the form of the loss of the opportunity to have entered into value-for-value exchanges with other web publishers and third-party advertisers whose business practices better conform to users' expectations. This is because users use their personal information not only to acquire online offerings; they use it to acquire a better-value exchange by choosing among competing providers. Given that they have choices in where they will engage in these value-for-value exchanges, Google's failure adequately to disclose its information practices and using its lack of disclosure to take users' information, Google impose a real opportunity cost on users. 70. Likewise, Google's lack of disclosure coupled with its taking of information im- poses costs on users who would otherwise have exercised their rights to utilize the economic value of their information by declining to exchange it with Google or any competitor-- foregoing online offerings entirely. Users routinely exercise such choices by electing whether to visit websites or download product, or whether set browser filters that limit how online providers can collect information. These, too, are decisions predicated on users' recognition and exercise of the value of their information. 71. Users' information, which they use as an asset of economic value in the ways de- scribed above, has value as an asset in the information marketplace. Online providers have proven the value of users' information through those providers' own business models, such as the fact that an online provider acquires revenue by providing user data to ad-delivery entities, First Amended Class Action Complaint 20 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or by allowing such entities to access users and acquire their information online. These practices have created an active market in which user information has a discernable price. 72. In addition, the information marketplace includes opportunities for users them- selves to market their information directly to online providers and advertisers and control the transfer of their information, with services such as allow.com (UK) ("[p]ersonal information like your name and address is being traded for profit everyday. Now you can help stop this trade and turn your data into cash for yourself with ALLOW's new, free service"); personal.com ("[o]wn, manage, and share your personal information"); and selectout.org. 73. Thus, Google's conduct alleged in this complaint constituted an ongoing course of conduct that harmed Plaintiff and Toolbar users in general, and caused them to incur financial losses, in that Google, without authorization, acquired the personal information of Plaintiff and Class Members, which information has economic value to Plaintiff and Class Members, causing them to incur costs in the form of information taken and opportunity costs in the form of uses of the economic value of their information of which Google deprived them. 74. Google realized significant economic benefits from the conduct described above. Google's purpose in acquiring users' data is to advance its commercial interests. Google's business is the selection and display of advertisements, and its notable success is due, in part, to the data is has amassed about individual users. Google uses such data to profile and track users for ad-serving purposes. 75. Google admits it faces "formidable competition in every aspect of our business, particularly from companies that seek to connect people with information on the web and provide them with relevant advertising." Google Inc., SEC Form 10-K for period ending Dec. 31, 2009 at 15. By misrepresenting the nature of its conduct and the personal information costs associated with using Toolbar, Google deprived users of their right to make adequately informed decisions about whether they would do business with Google or one of its competitors. 76. By that same conduct, Google imposed on users the undisclosed opportunity costs of their choosing to do business with Google and use Toolbar. Google's actions caused First Amended Class Action Complaint 21 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 users to expend money, time, and resources, and with a cost to their productivity, because of their efforts investigating and attempting to mitigate the operation of Toolbar on their personal computers and attempting to control or remove the persistent data-harvesting software installed without adequate notice by Google or consent from users. 77. Further, Google's installation of Toolbar software with its undisclosed features interfered with, diminished, and devalued users' possessory interests in their personal computers and Internet communications, infringed on users' right to exclude others from unauthorized access to their personal computers, and compromised the integrity, ownership, and operability of users' personal computers. 78. Google's deployment of Toolbar in the marketplace and the ongoing, continuous, automatic operation of Google systems programmed to interact with Toolbar constituted a single act that caused an aggregated loss of at least $5,000 within a one-year period to users affected by Toolbar. 79. The costs and harms described above are aggravated by Google's continued re- tention and commercial use of the improperly acquired user data. 80. The privacy risks for more novice or less sophisticated users are heightened by the fact that, in contrast to the impediments Google imposes on users who seek to exercise controls over Toolbar features, Google makes it exceedingly easy for users to enable Toolbar's advanced features in the first place. Thus, despite Google's assurance that "[o]ther features . . . only operate and transmit data if you choose to enable them," the net effect of the Toolbar design--Toolbar's configuration choices, it's reframing of "advanced features" as "enhanced features," and the quality of its Help and documentation--serve to draw large numbers of users into unknowingly transmitting to Google their every Internet transaction, including their interactions with Google competitors. 81. Even among privacy-aware users, most users do not have the skill or ability nec- essary to confirm Google's representations and to analyze their Internet communications to detect Google's misconduct, particularly when Toolbar disappears from view and appears to be First Amended Class Action Complaint 22 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disabled, but is not. In this regard, Google's behavior is particularly egregious because the users whose information, privacy rights, and economic choices are most affected are those who attempt to utilize available mechanisms to disable Toolbar's advanced features, but who are defeated in their efforts by the deceptive statements of Google and the undisclosed operation of Toolbar. V. CLASS ALLEGATIONS 82. Plaintiff brings this action pursuant to Fed. R. Civ. P. 23(b)(2) and 23(b)(3) on behalf of themselves and the following class: All individuals or entities in the United States who, from June 30, 2009 to the present (the "Class Period"), downloaded, installed, and used Google Toolbar with the result that their information, including URLs visited, was transmitted to Google without their informed consent. 83. Plaintiff reserves the right to revise this definition of the Class based on facts learned in the course of litigation of this matter. 84. Excluded from the Class are: (i) any judge or magistrate presiding over this ac- tion, and the court personnel supporting the judge or magistrate presiding over this action, and members of their respective families; (ii) Defendant, Defendant's subsidiaries, parents, successors, predecessors, and any entity in which a Defendant or its parent has a controlling interest; and its current or former employees, officers, and directors; (iii) persons who properly execute and file a timely request for exclusion from the Class; and (iv) the legal representatives, successors, or assigns of any such excluded persons. 85. The Class consists of thousands, if not millions, of individuals and other entities, making joinder impractical. Members of the class may be readily identified through Defendant's business records. 86. 87. The claims of Plaintiff are typical of the claims of all other Class Members. Plaintiff will fairly and adequately represent the interests of the other Class Members. Plaintiff has retained counsel with substantial experience in prosecuting complex litigation and class actions. Plaintiff and his counsel are committed to vigorously prosecuting First Amended Class Action Complaint 23 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this action on behalf of the Class Members and have the financial resources to do so. Neither Plaintiff nor his counsel has any interests adverse to those of the other Class Members. 88. Absent a class action, most Class Members would find the cost of litigating their claims to be prohibitive and would have no effective remedy. 89. The class treatment of common questions of law and fact is superior to multiple individual actions or piecemeal litigation in that it conserves the resources of the courts and the litigants and promotes consistency and efficiency of adjudication. 90. Google has acted and failed to act on grounds generally applicable to Plaintiff and the other Class Members, requiring the Court's imposition of uniform relief to ensure compatible standards of conduct toward Class Members. 91. The factual and legal bases of Google's liability to Plaintiff and other Class Members are the same, resulting in injury to Plaintiff and all of the other Class Members. Plaintiff and the other Class Members have all suffered harm and damages as a result of Google's wrongful conduct. 92. There are many questions of law and fact common to Plaintiff and the Class Members. Common questions for the Class include but are not limited to: a. whether consumer software provided by Google functioned as advertised; b. whether Google intended that its consumer software not function as advertised; c. whether Google's representations regarding the operation and control of its consumer software were deceptive and misleading; d. whether Google, with Toolbar and against consumers' explicit instructions, caused consumers' electronic communications to be intercepted and transmitted to Google's servers; e. whether Google's conduct described herein violates the Electronic Communications Act, Title 18 United States Code, Section 2510, First Amended Class Action Complaint 24 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 m. l. k. j. i. h. g. f. et seq. (Wiretap Act); whether and with what mens rea Google caused software to be installed on user's computers to transmit data invisibly and defeat the normal operation of users' browser controls; whether Google's conduct described herein violates the Computer Fraud and Abuse Act, Title 18 United States Code, Section 1030, et seq.; whether Google's conduct described herein violates California Unfair Competition Law, California Business and Professions Code, Section 17200, et seq.; whether Google's conduct alleged herein, or any part of it, was intentional; whether Google's conduct alleged herein, or any part of it, was knowing; whether and to what extent Google has been unjustly enriched by its conduct; whether and in what manner Google retains and uses user data improperly acquired through Toolbar; and whether and to what extent Plaintiff and the Class have suffered harm in the nature of economic loss, other loss, and damage to their computers. The questions of law and fact common to Class Members predominate over any questions affecting only individual members, and a class action is superior to all other available methods for the fair and efficient adjudication of this controversy. CLAIMS FOR RELIEF Based on all the allegations of this complaint, Plaintiff's claims for relief include the following: First Amended Class Action Complaint 25 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and proper; b. 93. 94. 95. FIRST CLAIM FOR RELIEF Violations of the Electronic Communications Privacy Act 18 U.S.C. 2510, et. seq. (Wiretap Act) Plaintiff incorporates the foregoing allegations as if fully set forth herein. Plaintiffs incorporate the above allegations as if fully set forth herein. Defendants' conduct was in violation of Title 18, United States Code, Section 2511(1)(a) because Defendants intentionally intercepted and endeavored to intercept Plaintiff's and Class Members' electronic communications. 96. Defendants' conduct was in violation of Title 18, United States Code, Section 2511(1)(d) in that Defendants used and endeavored to use the contents of Plaintiff's and Class Members' electronic communications, knowing and having reason to know the information was obtained through interception in violation of Title 18, United States Code, Section 2511(1). 97. Through Defendants' interception, endeavoring to intercept, use, and endeavor- ing to use Class Members' electronic communications, their electronic communications were in fact intercepted and intentionally used, in violation of Title 18, United States Code, Chapter 119. Accordingly, Class Members are entitled to: a. such preliminary and other equitable or declaratory relief as may be just damages computed as the greater of (i) the sum of the actual damages suf- fered by Plaintiffs and Class Members plus Defendants' profits made through the violative conduct alleged in this complaint; (ii) statutory damages for each Class Member of $100 a day for each day of violation; or (iii) statutory damages of $10,000 per user; c. d. punitive damages; and reasonable attorneys' fees and other litigation costs reasonably incurred. SECOND CLAIM FOR RELIEF Violations of the Computer Fraud and Abuse Act, 18 U.S.C. 1030, et. seq. 98. Plaintiff incorporates the foregoing allegations as if fully set forth herein. First Amended Class Action Complaint 26 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 99. Defendant violated the Computer Fraud and Abuse Act, 18 United States Code, Section 1030, et. seq., in that Defendant knowingly accessed and, without permission, used, copied, and made use of data, computers, computer systems, and computer networks in order to devise and execute schemes and artifices to defraud, deceive, or extort, and to wrongfully control or obtain money, property, or data, in Defendant's deceptive deployment and operation of Toolbar, which Defendant deployed to gain access to and use of Class Members' Internet activity data emanating from their computers, on which the client-side portion of Toolbar was installed. 100. Google, through the operation of its systems and Google Toolbar, as set forth above, knowingly and with intent to defraud, accessed users' protected computers without authorization and in excess of any authorization, and by means of such conduct furthered its intended fraud of obtaining users' confidential Internet communications and obtained such communications. 101. As set forth above, including in the discussion of "Computer Tampering and Contamination," page 17, above, Google knowingly transmitted programs, codes, and commands to users' personal computers and intentionally caused damage to protected computers, doing so without authorization and exceeding any level of authorization Google had. 102. Through the same conduct, Google intentionally caused damage to users' pro- tected computers, doing so without authorization. 103. Plaintiff and the Class Members suffered damage and loss during the Class Pe- riod, as specifically alleged in paragraphs 64 through 81, above, in an amount exceeding $5,000 in the aggregate. 104. Plaintiff and the Class Members are therefore entitled to compensatory damages and injunctive relief under 18 United States Code, Section 1030, et seq. First Amended Class Action Complaint 27 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 108. 105. 106. THIRD CLAIM FOR RELIEF Violations of the Unfair Competition Law (UCL) California Business and Professions Code 17200, et seq. Plaintiff incorporates the foregoing allegations as if fully set forth herein. In violation of California Business and Professions Code, Section 17200 et seq., Defendant's conduct in this regard is ongoing and includes, but is not limited to, statements made by Defendant and Defendant's omissions, including as set forth above. 107. By engaging in the above-described acts and practices, Defendant has committed one or more acts of unfair competition within the meaning of the Unfair Competition Law and, as a result, Plaintiff and the Class have suffered injury-in-fact and have lost money and as specifically alleged in paragraphs 64 through 81, above. (i) Unlawful Business Act and Practices Defendant's business acts and practices are unlawful, in part, because they vio- late California Business and Professions Code, Section 17500, et seq., which prohibits false advertising, in that they were untrue and misleading statements relating to Defendant's performance of services and with the intent to induce consumers to enter into obligations relating to such services, and regarding which statements Defendant knew or which, and by the exercise of reasonable care Defendant should have known, were untrue and misleading. 109. Defendant's business acts and practices are also unlawful in that they violate the California Consumer Legal Remedies Act, California Civil Code, Section 1750, et seq.; Title 18, United States Code, Section 1030, et. seq.; and Title 18, United States Code, Section 2510, et. seq. Defendant is therefore in violation of the unlawful prong of the Unfair Competition Law. 110. Defendant's business acts and practices are also unlawful in that they violate the California Constitution, Article I, Section 1, which articulates the inalienable right to pursue and obtain privacy, in that, through Toolbar, Defendant willfully interfered with and obstructed users' rights and actual attempts to pursue and obtain the privacy promised by Defendant as an First Amended Class Action Complaint 28 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 inducement for users to install Toolbar. (ii) Unfair Business Act and Practices 111. Defendant's business acts and practices are unfair because they have caused harm and injury-in-fact to Plaintiff and Class Members and for which Defendant has no justification other than to increase, beyond what Defendant would have otherwise realized, its information assets supportive of its advertising revenue. 112. The utility of Defendant's conduct is not outweighed by the gravity of the harm to Plaintiff and Class Members as specifically alleged in paragraphs 64 through 81, above. 113. Plaintiff's and Class Members' injury is substantial, and is not outweighed by any countervailing benefit to consumers or competition and is one that consumers could not reasonably have avoided because of the manner in which Defendant engaged in disclosures and omissions as set forth herein. 114. Defendant's conduct lacks reasonable and legitimate justification in that Defen- dant has benefited from such conduct and practices while Plaintiff and the Class members have been misled as to the nature and integrity of Defendant's products and services and have, in fact, suffered material disadvantage regarding their interests in the privacy and confidentiality of their personal information. Defendant's conduct offends public policy in California tethered to the Consumer Legal Remedies Act, the state constitutional right of privacy, and California statutes' recognition of the need for consumers to be information and equipped to protect their own privacy interests, such as California Civil Code, Section 1798.8, such that consumers may make informed decisions in their choices of merchants and other means of safeguarding their privacy. 115. Plaintiffs and Class Members enjoy a legally protected privacy and economic in- terest in their Internet browsing activity as alleged in paragraphs 64 through 81, above. 116. Plaintiff's expectation of privacy was reasonable under the circumstances and Defendant's conduct caused a serious violation of that privacy interest in that his personal information was collected and used by Defendant without his consent and authorization. First Amended Class Action Complaint 29 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 117. In addition, Defendant's modus operandi constitutes a sharp practice in that De- fendant knew and should have known that consumers care about the status of personal information and privacy but are unlikely to be aware of and able to detect the means by which Defendant was conducting itself in a manner adverse to its commitments and its users' interests, through the undisclosed functions of Toolbar. Defendant is therefore in violation of the unfair prong of the Unfair Competition Law. 118. Defendant's acts and practices were fraudulent within the meaning of the Unfair Competition Law because they were likely to mislead the members of the public to whom they were directed. 119. Plaintiff, on behalf of himself and on behalf of each member of the Class, seeks restitution, injunctive relief, and other relief allowed under the Unfair Competition Law. FOURTH CLAIM FOR RELIEF Unjust Enrichment 120. 121. Plaintiff incorporates the foregoing allegations as if fully set forth herein. Plaintiff asserts this demand for relief against each and every Defendant named in this complaint in this complaint on behalf of himself and the Class. 122. A benefit has been conferred upon Defendant by Plaintiff and the Class. On in- formation and belief, Defendant, directly or indirectly, has received and retained information regarding Class Members' Internet browsing activity that is otherwise private, confidential, and not of public record, and/or has received revenue from the use and provision of such information. 123. 124. Defendant appreciates or has knowledge of said benefit. Under principles of equity and good conscience, Defendant should not be permit- ted to retain the information and/or revenue it acquired by virtue of their unlawful conduct. All funds, revenues, and benefits received by Defendant rightfully belong to Plaintiff and the Class, which Defendant has unjustly received as a result of its actions. First Amended Class Action Complaint 30 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PRAYER FOR RELIEF WHEREFORE, Plaintiff and the Class respectfully pray that the Court enter judgment in their favor as follows: 1. with respect to all counts, declaring the action to be a proper class action and des- ignating Plaintiff and their counsel as representatives of the Class; 2. as applicable to the Class mutatis mutandis, awarding injunctive and equitable re- lief including, inter alia: a. b. prohibiting Defendant from engaging in the acts alleged above; ordering an accounting and constructive trust imposed on the data, funds, and other assets obtained by unlawful means as alleged above, to avoid dissipation, fraudulent transfers, and concealment of such assets by Defendant; c. requiring Defendant to delete all data wrongfully collected and retained through the acts alleged above; d. requiring Defendant to provide clear, conspicuous, accessible, and accu- rate notice of its practices, instructions, and privacy choices for configuring and using Toolbar; e. requiring Defendant to provide Plaintiff and the other Class Members a clear, conspicuous, effective, and permanent means to decline to participate or suspend participation in any Toolbar data collection activities, in any present or future iteration of Toolbar; f. requiring Defendant to disgorge all ill-gotten gains to Plaintiff and the other Class Members, or to whomever the Court deems appropriate; g. awarding Plaintiff and Class Members full restitution of all benefits wrongfully acquired by Defendant by means of the wrongful conduct alleged in this complaint; h. awarding Plaintiff and Class Members full compensation for all costs arising from Defendant's wrongful conduct; 3. for a preliminary and permanent injunction restraining Defendant and Defen- dant's officers, agents, servants, employees, and attorneys, and those in active concert or participation with any of them from: First Amended Class Action Complaint 31 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a. acquiring any information about Plaintiff's or Class Members' activities on the Internet without fair, clear and conspicuous notice of the intent to transmit information, including a full description of all information potentially and/or actually available for transmission; 4. awarding damages, including statutory and punitive damages where applicable, to the Class in an amount to be determined at trial; 5. 6. 7. awarding Plaintiff reasonable attorney's fees and costs; awarding pre- and post-judgment interest; and granting such other and further relief as the Court may deem just and proper. Respectfully submitted, DATED: March 16, 2011 KAMBERLAW, LLC KAMBERLAW, LLP By: s/David A. Stampley David A. Stampley dstampley@kamberlaw.com 100 Wall Street, 23rd Floor New York, New York 10005 Telephone: (212) 920-3072 Facsimile: (212) 920-3081 One of the Attorneys for Plaintiff, Individually and on Behalf of a Class of Similarly Situated Individuals Scott A. Kamber skamber@kamberlaw.com KamberLaw, LLC 100 Wall Street, 23rd Floor New York, New York 10005 Telephone: (212) 920-3072 Facsimile: (212) 920-3081 Avi Kreitenberg (SBN 266571) akreitenberg@kamberlaw.com KamberLaw, LLP 1180 South Beverly Drive, Suite 601 Los Angeles, California 90035 Telephone: (310) 400-1050 Facsimile: (310) 400-1056 Attorneys for Plaintiff First Amended Class Action Complaint 32 Case No: 10-CV-05035 LHK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Scott A. Kamber skamber@kamberlaw.com David A. Stampley dstampley@kamberlaw.com KamberLaw, LLC 100 Wall Street, 23rd Floor New York, New York 10005 Telephone: (212) 920-3072 Facsimile: (212) 920-3081 JURY TRIAL DEMAND Plaintiff hereby demands a trial by jury of all issues so triable. Respectfully submitted, DATED: November 5, 2010 KAMBERLAW, LLC KAMBERLAW, LLP By: ____________________ AVI KREITENBERG One of the Attorneys for Plaintiff, individually and on behalf of a class of similarly situated individuals Avi Kreitenberg (SBN 266571) akreitenberg@kamberlaw.com KamberLaw, LLP 1180 South Beverly Drive, Suite 601 Los Angeles, California 90035 Telephone: (310) 400-1050 Facsimile: (310) 400-1056 Attorneys for Plaintiff First Amended Class Action Complaint 33 Case No: 10-CV-05035 LHK

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