Priyev v. Google, Inc.
Filing
1
COMPLAINT filed by Gabriel Priyev; Jury Demand. Filing fee $ 350, receipt number 0752-6891964. (Attachments: # 1 Civil Cover Sheet)(Bulgarelli, Mark)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS,
EASTERN DIVISION
GABRIEL PRIYEV, individually and on behalf of
all others similarly situated,
JURY TRIAL DEMANDED
Plaintiff,
v.
Case No.:
GOOGLE INC. and DOES 1-20.
Defendants.
CLASS ACTION COMPLAINT
Plaintiff, individually and on behalf of all others similarly situated, upon both personal
knowledge and information and belief, and following investigation by counsel, alleges as follows
against Defendants, Google Inc. (“Google”) and Does 1-20:
INTRODUCTION
1.
This case seeks relief for Plaintiff and a Class of similarly situated users of Google’s
internet search services in the State of Illinois whose Google.com internet search histories were
stored in Google’s records and shared with third-parties, in violation of Google terms of use.
2.
Google tracks and stores the internet web pages that its users visit, and the search
terms they use to get there from Google.com. When doing so, by default, Google associates users’
web browsing activity and search queries with their uniquely identifiable information such as their
Google email (“Gmail”) addresses, by maintaining user Web Histories.
3.
Google has at relevant times promised these Gmail users that they can permanently
delete such “Web History,” and has promised not to unilaterally share such information with thirdparties for commercial use. But, Google has broken these promises. Google’s sharing of Web
History with third-parties also runs contrary to user expectations.
4.
Plaintiff seeks to enjoin Google from sharing his search terms and results with third-
party individuals and entities, and commensurate restitution and damages.
JURISDICTION, VENUE AND PARTIES
5.
Plaintiff is an individual and a citizen of the State of Illinois.
6.
Google is a corporation with its principal place of business in Mountain View,
California, where transactions or conduct giving rise to Plaintiff’s claims occurred and where
Google maintains offices in this judicial District. Google’s
Google routinely does business.
Chicago office is one of the largest Google offices in the United States which on information and
belief conducts business related to Google AdWords and Google Analytics, which are at issue in
this case.
7.
Defendant Does 1-20 are officers, principals, agents, managers, and subsidiaries of
Google, and/or other persons or entities sued by fictitious names who authorized, directed or
otherwise exerted operational control over the unlawful conduct alleged herein.
8.
The Court has jurisdiction pursuant to 28 U.S.C. § 1332(d)(2). Based on the total
value of the claims and relief sought by Plaintiff individually and on behalf of the Class, the total
amount in controversy in this case exceeds $5,000,000.
9.
Venue is proper before the Court under 28 U.S.C. § 1391(b) because, inter alia, a
substantial part of the events or omissions at issue occurred in this judicial District; indeed the
transactions of Plaintiff and the Class giving rise to Plaintiff’s claims occurred principally in the
State of Illinois including this judicial District.
FACTUAL ALLEGATIONS
10.
Google is an internet search portal that controls roughly seventy percent of the search
engine market and at relevant times has processed approximately 11,000 searches per second.
11.
Google has become the leading search engine on the internet, inter alia, by touting
its privacy protections for its users.
12.
Internet searching is not typically done in the public eye. Plaintiff and the Class
typically use Google to conduct searches on their own, individually or private, and expect that their
searches will be kept private by Google except as agreed to by Plaintiff and the Class, i.e., as stated
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in Google’s contract or terms of service which, for purposes herein, include its published policies,
frequently asked questions, and definitions that set forth how Google will provide them with an
internet search experience, as described below.
13.
Google’s terms of use have endowed Plaintiff and the Class with rights to their
Google search terms and search results (herein, “results” includes reference to a record of visits to
third-party websites), considers their search terms and search results to be their property, and have
set forth the boundaries of what Google can and cannot do with their search terms and search results
and consumer expectations thereby.
14.
Consistent with expectations of consumers like Plaintiff, Google’s terms have
identified internet search terms as personal information in the privacy policy for Google’s Web
History service. That policy likewise has set forth parameters of what Google does with users’ Web
History.
15.
Google’s conduct set forth herein violates the scope of what its terms of use have
allowed it to do with user search terms, and has violated Plaintiff and other Class members’
expectations that their Google searches will remain private except as set conveyed by Google’s
terms of use.
16.
Further, as Google has admitted, “If users believe that the text of their search queries
could become public knowledge, they may be less likely to use the search engine for fear of
disclosure of their sensitive or private searches for information or websites.” Declaration of Matt
Cutts, at ¶ 24, filed February 17, 2006, in Gonzales v. Google, Case No. 5:2006-MC-80006 (N.D.
Cal. 2006). Here, irrespective of whether searches are publicized to the world at large, or without
reference to the searcher’s name, to the owners of internet sites that Plaintiff and the Class have
navigated to, the same principle applies.
17.
Had Plaintiff known of Google’s conduct described herein, Plaintiff would have used
Google to conduct internet searches less frequently or would have used other internet browsers to
conduct internet searches.
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Referrer Headers and Google Analytics
18.
When an internet user enters a search query into Google.com, Google has at relevant
times recorded the search, by assigning a unique “URL” or internet address to the search results
page that contains the search terms entered by the user. This record is called the “Referrer Header.”
The user’s Referrer Headers and Google.com search history are or were at relevant times then
stored in Google’s own files and shared, by Google, with third-party owners of other websites.
19.
Specifically, when an internet user has entered a search query into Google.com and
clicks on a search result to a third-party website, Google has created a Referrer Header, which
reveals the search terms that got the user to that website, and stores the Referrer Header in its files.
At relevant times Google has then made the Referrer Header freely available to the owner of that
website.
20.
Thus, if Plaintiff typed the search query “Priyev” into Google.com, Google will then
produce a Referrer Header recording the search results and the search term “Priyev.” If a user then
opened one of the search results, such as Acme.com, the owner of Acme.com may receive a report
from Google which reveals Plaintiff’s and other users’ search terms.
21.
The user’s search queries, search results and/or and Referrer Headers form a
substantial part of what Google’s terms of service identify or define as the user’s “Web History,”
which Google keeps of every user it can, by default.
22.
Courtesy of Google, a website owner may or did at relevant times opt to receive
reports containing a history of all Web History search terms, or Referrer Headers, which were used
to visit the owner’s website through Google.com. Such information provides valuable business
intelligence to third-party website owners, including owners who may use such information to buy
advertising on Google.com (including using Adwords).
23.
At relevant times Google has regularly and periodically produced these detailed user
search term and search result reports to third-party owners of web pages through Google’s free
service, Google Analytics, which individuals and entities can use for a multiplicity of reasons.
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24.
Google Analytics and Referrer Headers vastly increase Google’s value and enables
Google to create, establish and enhance its business relationships with countless website owners and
other users of Google Analytics, including third-parties who then use Google Analytics results to
plan targeted online advertising campaigns. In fact, Google induces third-parties to sign-up for its
for-pay Google “Adwords” advertising services by promoting and linking its free Google Analytics
reports with its Adwords service. Google Analytics thus provides a springboard or marketing entre
to Adwords, which puts considerable money in Google’s pocket.
Google’s Breaches of its Terms of Service.
25.
Google has told its users that it understands the importance of internet privacy and
that it provides its services in furtherance of that end. As communicated by Google to its users,
Google’s terms of service or its search services on Google.com are purportedly designed to protect
users and ensure privacy in connection with their search experience, to provide transparency to its
users, to reflect strong privacy standards and practices, to give users meaningful choices to protect
their privacy, and to responsibly hold user information.
26.
Google has had at relevant times a Privacy Policy specific to its Web History service
(the “Web History Privacy Policy”), which has been in effect, for example, when Plaintiff and other
members of the Class have searched the internet while they were logged into their Gmail accounts,
and/or from their Google search bars while logged into Google email (“Gmail”), for years up to the
date of filing this Complaint.
27.
Google’s relevant online terms and privacy policy have defined “Web History,” and
“Personal Information,” as follows:
WEB HISTORY
Personal Information
Web History records information about the web pages you visit and your
activity on Google, including your search queries, the results you click on,
and the date and time of your searches in order to improve your search
experience and display your web activity. Over time, the service may also
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use additional information about your activity on Google or other
information you provide us in order to deliver a more personalized
experience.
28.
Google’s terms of service expressly provide that information entered by a user on
Google.com, including Plaintiff and other Class members’ search terms, remain the property of the
user. Specifically, the Terms of Services state that “Google acknowledges and agrees that it obtains
no right, title or interest from you (or your licensors) under these Terms in or to any Content that
you
submit,
post,
transmit
or
display
on,
or
through,
the
Services.”
http://www.google.com/accounts/TOS.
a. Google Analytics Reports Breach Web History Privacy Promises.
29.
Google has promised that it will use Web History solely for the benefit of the user or
with the user’s consent. Google promised to Plaintiff and the Class at relevant times:
Web History uses the information from your web history or other
information you provide us to improve your Google search experience,
such as improving the quality of your search results and providing
recommendations. In addition to enabling the Web History functionality,
the information we collect when you use Web History may be shared
among all of our services in order to provide you with a seamless
experience and to improve the quality of our services. We will not disclose
this information to other companies or individuals, except in the limited
circumstances described in our main Google Privacy Policy, or with your
consent.
http://www.google.com/history/privacyfaq.html?hl=en.
30.
Google’s conduct has breached these privacy promises. Contrary to these terms,
Google has provided Web History, including “search queries” or search terms, “results,” and
Referrer Headers, to third-parties including via Google Analytics, not for the benefit of the user
experience, i.e., not “to provide you with a seamless experience and to improve the quality of our
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services,” but rather to enhance its profit and position by peddling user Web History and search
queries to third-party website owners via Google Analytics reports, in order to market and expand
its Google Adwords advertising services for Google’s financial gain.
31.
In addition, inasmuch as Web History and search queries or results are “personal
information,” Google’s employment of Google Analytics reports breaches its above-referenced
“main Google Privacy Policy,” wherein Google has previously agreed to share users’ personal
information only in limited circumstances, none of which apply to the facts at issue: (1) with user
consent – opt-in consent is required; (2) to Google “subsidiaries, affiliated companies or other
trusted businesses or persons for the purpose of processing personal information on [Google’s]
behalf”; and (3) as reasonably necessary to follow applicable law and the like. Privacy Policy,
http://www.google.com/intl/en/privacypolicy.html.
32.
First, Google shared Plaintiff and other Class members’ search queries, results,
Personal Information, and Referrer Headers with third-parties without obtaining consent from
Plaintiff and the Class.
33.
Second, Google shared Plaintiff and other Class members’ search queries, results,
and Personal Information with third-parties who process said information as they see fit and not on
Google’s behalf.
34.
Furthermore, Google’s Web History Privacy Policy has stated that “[o]ver time, the
service may use additional information about your activity on Google or other information you
provide
us
in
order
to
deliver
a
better
search
experience.”
http://www.google.com/intl/en/privacypolicy.html. However, in reality, Google has collected and
shared Plaintiff and other Class members’ Referrer Headers and Web History to benefit the thirdparties who use Google Analytics to improve their marketing and advertising strategies, and to pad
Google’s value and profits, not to benefit the users of Google.com who entered the search terms.
35.
Indeed, Google has continually disclosed Plaintiff and other Class members’ Web
History, or search terms and results, with other companies and individuals who used Google
Analytics or who received Referrer Headers as described more fully above.
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36.
Due to the aforementioned conduct, Google shared or offered to share Plaintiff’s
Web History and/or Personal Information with virtually anyone who operated or maintained a
website that Plaintiff visited using Google.com.
b. Google Has Continues To Store And Use Web History Despite Its
Promise That Web History Can Be Removed.
37.
Though Google collects Web History on its users by default, Google has represented
that users of its service can delete or turn off their Web History from their account.
38.
For example, Google has at relevant times stated “[d]eleting web history from your
Google Account will erase all items from your web history and stop your web history from being
recorded in the future. You can also remove individual items without deleting all of your web
history.” http://www.google.com/support/accounts/bin/answer.py?hl=en&answer=54067; see also
http://www.google.com/intl/en/privacypolicy.html; see also
http://www.google.com/history/privacyfaq.html?hl=en ( stating “[i]f you remove items [from your
Web History], they will be removed from the service….”).
39.
Such terms conveyed at relevant times that when Web History is deleted, Google no
longer holds onto it or uses it, but rather, “erases,” “deletes” and “removes” it from its records.
40.
Yet, Google has offended privacy concerns and taken property of Google users
whose Web History and Personal Information (including Referrer Headers and search
queries/results), Plaintiff reasonably believes, Google continued to store in its files, and transmit to
third-parties via Referrer Headers or Google Analytics, even after a user has deleted or turn off his
or her Web History.
41.
activity
Google likewise has promised that users “can choose to stop storing [their] web
in
Web
History
either
temporarily
or
permanently.”
http://www.google.com/history/intl/en/privacy.html. In violation of this provision, on information
and belief Google did not stop storing web activity when the user so chose but instead has thereafter
continued and/or continues to transmit Referrer Headers or search queries or results containing Web
History to third-parties, including via Google Analytics.
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The Personal Nature of Referrer Headers
42.
While Google has provided third-parties with Referrer Headers, at such times
Google has known that Referrer Headers can frequently contain sensitive personal information.
43.
As stated by Matt Cutts, once Google’s Senior Staff Software Engineer and head of
the Webspam group:
There are ways in which a search query alone may reveal personally identifying
information. For example, many internet users have experienced the mistake of
trying to copy-and-paste text into the search query box, only to find that they have
pasted something that they did not intend. Because Google allows very long queries,
it is possible that a user may paste a fragment of an email or a document that would
tie the query to a specific person. Users could also enter information such as a credit
card, a social security number, an unlisted phone number or some other information
that can only be tied to one person. Some people search for their credit card or social
security number deliberately in order to check for identity theft or to see if any of
their personal information is findable on the web.
44.
Other internet savvy professionals have also noted the personal nature of search
terms:
Taken alone, the Google search box is an exquisitely intimate repository of user
information. "People treat the search box like their most trusted advisors," says
Kevin Bankston, the Electronic Frontier Foundation (EFF) attorney. "They tell the
Google search box what they wouldn't tell their own mother, spouse, shrink or
priest." Think about your most recent queries, say, about your "anal warts" or
"inability to love in marriage," or "self-hatred," or your interest in the mechanics of
"making a pipe bomb." The search box is as good a place as any to understand how
the Googleplex keeps tabs on its users. When you do a search, "cookies" installed on
your computer record your IP address (a series of unique numbers that may be used
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to identify your computer), so Google can, in many contexts, identify a user. And it
can do so with any of its applications.
http://www.theinvestigativefund.org/investigations/rightsliberties/1274/the_cloud_panopticon.
45.
Individuals including Plaintiff and other members of the Class, have used Google’s
search engine to perform searches that they do not wish other persons, or third-party websites that
they go to as a result of a search, to see, that they do not expect such persons or third parties to see,
and/or that Google has promised not to share with third-parties without their express consent.
46.
Individuals, such as Plaintiff and other members of the Class, have used Google’s
search engine to find personal information such as web material concerning sensitive health
conditions or containing their own names (“vanity searches”), which Google has shared with thirdparties through Google Analytics.
47.
Google knows of, and in the past has utilized, technologies to create records that
keep searches private by ensuring that Referrer Headers log the website found via a search, but
block the search term used to get to the site which may contain personal information.
48.
For example, in approximately November 2008 Google began utilizing
Asynchronous JavaScript and XML (“AJAX”) technology. AJAX caused search results pages to
include search terms only after a “#” sign appearing in the search record, which enabled search
information not to be recorded; using AJAX, the web page owner’s Google Analytics report would
merely state www.google.com as the Referrer Header. Despite the obvious privacy benefits to its
users, Google has abandoned this approach and gone to extreme measures to ensure that search
terms are included in Referrer Headers in order to serve its business interests vis a vis web page
owners, who benefit from such business intelligence – a service which Google now provides free of
charge via its Google Analytics service.
49.
Due to Google’s above-described conduct, Plaintiff and the Class are entitled to
commensurate declaratory and injunctive relief, plus appropriate actual, compensable, and statutory
restitution and damages.
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50.
Google has used Plaintiff and the Class members’ search queries and results
constituting their Web History to market its services via Google Analytics and to retain advertising
business from third-party website owners, which has greatly inured to Google’s financial benefit.
51.
As set forth above, Plaintiff and the Class never consented to Google’s above-
described conduct and Google failed to provide them with notice thereof.
CLASS ACTION ALLEGATIONS
52.
Plaintiff brings this action individually as a class action pursuant to Federal Rule of
Civil Procedure 23 on behalf of the following Class:
All persons in the State of Illinois for whom Google has maintained
Web History from five years preceding the filing of this Complaint.1
Excluded from the Class are any members of the judiciary presiding over this action, Plaintiff’s
Counsel, and Google, its officers, directors, employees, family and legal representatives.
53.
Plaintiff reserves the right to amend or modify the Class definition in connection
with his motion for class certification and/or as a result of discovery.
54.
The Class is so numerous that joinder of all members is impracticable. While the
exact number of the Class members is unknown to Plaintiff at this time, such information can be
easily ascertained through Google’s records.
55.
Plaintiff will fairly and adequately represent and protect the interests of the members
of the Class and has retained counsel experienced in complex class actions.
56.
Google’s unlawful conduct as set forth herein is generally applicable with respect to
the Class as a whole, so that final injunctive relief or corresponding declaratory relief is appropriate.
57.
Common questions of law or fact exist as to all members of the Class and
predominate over questions affecting only individual Class members, including, for example:
a.
Whether Google has shared Plaintiff and other Class members’ Referrer
Headers, and search queries or results with third-parties;
1
Plaintiff intends to amend the class definition including the class period at issue following
discovery, which will, inter alia, identify time periods in which various versions of its terms of
service were in effect.
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b.
Whether Google continues to use or store information that is part of Web
History after the user chooses to delete, remove or to no longer store with
Google such information;
c.
Whether Google’s conduct offends or violates its own terms of service;
d.
Whether Google’s conduct constitutes breach of its contract or its implied
contract with Plaintiff and the Class;
e.
Whether Google’s conduct breached its duty of good faith and fair dealing to
Plaintiff and the Class;
f.
Whether Google is unjustly enriched by its herein-described conduct;
g.
Whether Plaintiff and the Class are entitled to damages;
h.
Whether Plaintiff and the Class are entitled to restitution; and
i.
Whether Plaintiff and the Class are entitled to injunctive relief.
58.
Plaintiff’s claims are typical of the claims of other Class members.
59.
A class action is an appropriate and superior method for fairly and efficiently
adjudicating and managing this controversy, which arises out of Google’s common course of
conduct with respect to the Class as a whole.
60.
Google’s herein-described terms of use, policy and practice pertaining to the facts at
issue are uniformly applicable to Plaintiff and the Class, making this case highly manageable and
well-suited to class-wide adjudication.
CAUSES OF ACTION
61.
Plaintiff pleads the following Causes and seeks the following remedies in the
alternative to the extent consistent with applicable law.
COUNT I
BREACH OF CONTRACT
62.
Plaintiff repeats and realleges the preceding allegations as if fully set forth herein,
and alleges this Cause on behalf of himself and the Class.
63.
Google offered Plaintiff and the Class use of its Web History, Gmail, and search
services pursuant to its above-described terms of service, which Plaintiff and the Class accepted as
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part of Google’s contract to use its services. The search experience of Plaintiff and the Class is
governed by Google’s contract which has included its above-described terms.
64.
Plaintiff and the Class used Google.com’s search services pursuant to and thus in
acceptance of Google’s relevant terms of service, including without limitation its Web History
policy, as follows.
65.
First, as part of recording user Web History and providing Gmail service, Google has
provided as follows in its Web History Privacy Policy (which is part of the contract):
Web History records information about the web pages you visit and your
activity on Google, including your search queries, the results you click on,
and the date and time of your searches in order to improve your search
experience and display your web activity. Over time, the service may also
use additional information about your activity on Google or other
information you provide us in order to deliver a more personalized
experience.
Web History uses the information described above to give you a more
personalized search experience. This information will be securely
transmitted to Google’s servers and stored in association with your Google
Account information in order to provide the service.
http://www.google.com/history/intl/en/privacy.html.
66.
Google has breached these provisions of its Web History Privacy Policy by using
and transmitting Plaintiff and other Class members’ Web History for purposes other than as
promised, i.e., to improve third-parties’ marketing and to enhance Google’s value and advertising
revenues, by sharing Plaintiff and Class member Web Histories with third-parties unaffiliated with
Google through the Google Analytics service.
67.
Second, Google promised in its Web History Privacy Policy that users “can choose
to stop storing [their] web activity in Web History either temporarily or permanently.”
http://www.google.com/history/intl/en/privacy.html. In violation of this provision, on information
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and belief Google did not stop storing web activity when the user so chooses but instead continued
to transmit Referrer Headers and Web History to third parties.
68.
Third, Google promised that “[d]eleting web history from your Google Account will
erase all items from your web history and stop your web history from being recorded in the future.
You can also remove individual items without deleting all of your web history.” Google further
represented, “If you remove items [from your Web History], they will be removed from the service
and
not
be
used
to
improve
your
search
experience”.
See
http://www.google.com/support/accounts/bin/answer.py?hl=en&answer=54067;
http://www.google.com/intl/en/privacypolicy.html;
http://www.google.com/history/privacyfaq.html?hl=en.
69.
Yet, Google broke this promise by continuing to store or record Web History in its
files, permanently or for a substantial period of time, even after a user deleted his or her Web
History.
70.
Fourth, at relevant times Google’s main Privacy Policy (also part of its contract)
expressly limited the circumstances in which Google can share Plaintiff and other Class members’
personal information. Google agreed to only share Google.com user’s personal information in the
following limited circumstances: (1) with user consent – opt-in consent is required; (2) to Google
“subsidiaries, affiliated companies or other trusted businesses or persons for the purpose of
processing personal information on [Google’s] behalf”; and (3) as reasonably necessary to follow
applicable law and the like. Privacy Policy, http://www.google.com/intl/en/privacypolicy.html.
71.
Google breached this provision of the main Privacy Policy by sharing Plaintiff and
other Class members’ search terms, Web History, and personal information therein, via transmittal
of Referrer Headers and search queries and results to third-parties including through Google
Analytics, in circumstances not warranted under the Privacy Policy and without user consent (or
opt-in consent), as more fully described above.
72.
Fifth, Google further stated in its main Privacy Policy that if Google uses personal
“information in a manner different than the purpose for which it was collected, then we will ask for
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your consent prior to such use.” http://www.google.com/privacy/privacy-policy.html.
Google
purportedly collected information to provide its users with its services.
73.
Yet, in violation of this promise, Google used Plaintiff and other Class members’
personal information to increase its revenues by transmitting the information to third-parties as
described above. Google did not obtain consent when collecting information for this undisclosed
purpose and therefore breached its Privacy Policy.
74.
The above-described provisions were material terms of the contract between Plaintiff
and the Class, and Google.
75.
Google breached the terms of the contract by sharing Plaintiff and other Class
members’ Web History, Personal Information, Referrer Headers, or search queries and results,
including as defined in Google’s Web History Privacy Policy and/or in its main Privacy Policy,
with third-party individuals and entities purely for its own commercial benefit and profit.
76.
Plaintiff and the Class did not authorize such conduct, and Google is unjustly
enriched as a result thereof.
77.
Plaintiff and the Class members’ Web History, Personal Information, and Referrer
Headers, which Google has provided to third-parties and continues to store or use even after a user
attempts to remove or delete such information, is the property of Plaintiff and the Class.
78.
Google’s terms of service merely endow Google with a license to use such
information, which is limited by the above-described specific terms that Google has breached.
79.
Google did not provide Plaintiff and the Class with consideration due for its above-
described uses of their information in violation of Google’s contractual terms.
80.
Google’s above-described uses of Plaintiff and the Class’ information were not
bargained for and exceed what is allowed pursuant to the parties’ contract.
81.
At relevant times, Plaintiff would not have conducted searches on Google.com in the
same way, had he known that his search queries and results and Referrer Headers were passed along
to owners of websites visited from such searches.
82.
Plaintiff and other Class members used Google’s services in accordance with the
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contract.
As a result of Google’s above-described breaches, Plaintiff and the Class were
83.
damaged and are entitled to commensurate relief.
COUNT II
BREACH OF CONTRACT
(BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING)
84.
Plaintiff repeats and realleges each of the preceding paragraphs as if fully set forth
herein, and brings this Cause on behalf of himself and the Class.
85.
Google entered into a form, take-it-or-leave it contract with Plaintiff and the Class
for their use of related services.
86.
As part of the contract, Google owed Plaintiff and the Class a duty of good faith and
fair dealing.
87.
Google delivered search service and maintained Web History pursuant to the
contract, whereby Plaintiff and other Class members’ Web History, Personal Information, and
Referrer Headers would be stored and used only according to Google’s published terms, which
promise that their information is private (and is their property), as set forth more fully above.
88.
After Plaintiff and the Class and Google entered into the contract, Google began
sharing Plaintiff and other Class members’ search terms and results and Referrer Headers with
third-parties in ways unfair to and unauthorized by Plaintiff and the Class as described more fully
above. In fact, Google profited by using their search terms and Referrer Headers to increase the
quantity and/or quality of its for-pay Google advertising services, such as Google Adwords, that
Google offers to third-parties, as more fully set forth above.
89.
Google usurped its discretion, and took advantage of the lack of discretion by
Plaintiff and the Class, in interpreting its above-described terms of service to effect its abovedescribed conduct, to the detriment of the property rights and expectations of Plaintiff and the Class.
90.
Google, by sharing Plaintiff and other Class members’ search query information
without notice or consent, as set forth above, breached its duty of good faith and fair dealing to
Plaintiff and the Class.
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91.
Additionally, Google has also kept, and continued to use, e.g., for purposes of
Google Analytics, Web History information even after users deleted their Web Histories and
selected Google’s option to request that such Web History no longer be stored.
92.
Google, by keeping and continuing to use users’ Web History information after they
delete Web History and/or select Web History to no longer be recorded, breached its duty of good
faith and fair dealing to Plaintiff and the Class.
93.
Google’s above-described sharing, storage and use of search terms has frustrated a
material purpose and protection of Google’s Web History and search engine, i.e., where users are,
according to Google, able to type in and/or control sensitive personal information under the guise of
privacy.
94.
Google’s continual sharing of Plaintiff and other Class members’ Web History and
Personal Information has prevented Plaintiff and the Class from receiving the benefits of the
contract, which provides: that Plaintiff and the Class may use Google.com whereby their Personal
Information is shared in only limited circumstances; that Web History is kept only for their benefit
and as expressly stated in Google’s terms; and that they can delete and choose not to have such
information stored.
95.
Google’s practice and policy of sharing Plaintiff and other Class members’ Web
History, Personal Information and search queries violated its duty of good faith and fair dealing to
Plaintiff and the Class, and caused damage to Plaintiff and the Class as a result.
96.
Google was unjustly enriched by its aforementioned conduct.
Google should
account for revenues and profits it improperly collected from its transmission of Referrer Headers
and Web History information, including from increased Google Adwords business, and should have
a constructive trust imposed with respect to such monies until further order of the Court.
COUNT III
BREACH OF CONTRACT IMPLIED IN LAW
97.
Plaintiff repeats and realleges paragraphs 1-61 as if fully set forth herein, and alleges
this Cause on behalf of himself and the Class.
98.
Google has knowingly, voluntarily and willfully received and retained benefits by
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sharing Plaintiff and other Class members’ Web History, Personal Information and search queries
or results via Referrer Headers and/or Google Analytics, as set forth above, under circumstances
that would render it unjust to allow Google to retain such benefits.
99.
The benefits received by Google from sharing Plaintiff and other Class members’
Web History, Personal Information and search queries via Referrer Headers and/or Google
Analytics were related to the obligation and duty of Google to use such information only as outlined
in the Google’s Web History Privacy Policy which does not include dissemination to third parties
and in Google’s other above-described terms of use, and/or as prescribed by applicable law.
100. Google uses Google Analytics to share such information in a manner that is not
specifically authorized under Google’s above-described terms of service.
101. The search terms and results that Plaintiff and the Class enter into Google.com are
Plaintiff and other Class members’ property, and Plaintiff and the Class have rights and
expectations regarding if or how their search queries and results are to be used and disclosed, as set
forth above.
102. Yet, Google is using Plaintiff and other Class members’ Content i.e., their Personal
Information, or search terms and results, to increase its advertising revenue via Google Analytics
and Google Adwords.
103. For third-party website owners, search terms and results entered by Plaintiff and the
Class on Google.com are not only Plaintiff and other Class members’ property, but are profitable
marketing information provided courtesy of Google Analytics to induce them to make use of forpay Google advertising services such as Adwords.
104. As a result, Google has increased its revenues and profits by peddling Plaintiff and
the Class members’ Personal Information, Web History, Referral Headers, or search terms or results
without notice or their consent. It would be inequitable for Google to retain these benefits it
received from sharing Web Histories, Personal information and search queries belonging to Plaintiff
and other Class members as Google shared this information in violation of its own terms of use and
representations to Plaintiff and the Class, their rights and reasonable expectations, and applicable
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law.
105. Google’s above-described conduct violates principles of equity and justice, which
prohibits Google from retaining these above-described benefits.
106. As a result, Plaintiff and other Class members are entitled to disgorgement and
restitution of Google’s revenues, profits and/or monies received by Google due to Google’s use of
Plaintiff and other Class members’ property i.e., their search terms and results.
COUNT IV
DECLARATORY JUDGEMENT AND
CORRESPONDING INJUNCTIVE RELIEF
28 U.S.C. §§ 2201, 2202
107. Plaintiff repeats and realleges the preceding allegations as if fully set forth herein,
and alleges this Cause on behalf of himself and the Class.
108. Google has violated applicable law as more fully set forth above.
109. Plaintiff and the Class are entitled to a declaration of their rights in connection with
what Google can and cannot do with their Web History, search queries and results, and Personal
Information.
110. Plaintiff and the Class and Google have adverse legal interests, and there is a
substantial controversy between Plaintiff and the Class, and Google, to warrant the issuance of a
declaratory judgment as to whether Google violated applicable law by its above-described practice
of sharing Plaintiff and other Class members’ search terms and results or Referrer Headers, and
whether Google is entitled to share the Web Histories of Plaintiff and the Class with third-parties
for its commercial gain, in violation of its preexisting contract and terms of use.
111. Absent injunctive relief, Google is likely to continue its above-described practices, as
Google is endowed with all of the discretion to do as it wishes with Plaintiff and the Class
members’ information.
112. As a result of Google’s above-described conduct in violation of applicable law,
Plaintiff and the Class are entitled to corresponding injunctive relief, and an order establishing a
constructive trust, for the benefit of Plaintiff and the Class, consisting of monies received by Google
from its unlawful sharing of Plaintiff and the Class’s search terms with third-party persons and
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entities.
113. Google’s new Terms of Use do not directly address Web History leaving Plaintiff
and the Class without any indication of what Google intends to do with the Web Histories
belonging to Plaintiff and the Class creating a need for injunctive relief holding Google to the terms
of previous contract with and terms of use for Plaintiff and the Class described in detail above.
114. As a result of Google’s above-described conduct in violation of applicable law,
Plaintiff and the Class are also entitled to an order requiring Google not to use or store preexisting
Web History for purposes of profiting by transmitting their information to third-parties.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, individually and on behalf of all others similarly situated, prays
that this Honorable Court enter judgment in favor of Plaintiff and against Google as follows:
a.
Find that this case may be properly maintained as a class action, and appoint Plaintiff
as Class representative and Plaintiff’s counsel as Class counsel;
b.
Declare the rights of the parties as stated above;
c.
Enjoin Google’s above-described conduct and provide injunctive relief as set forth
above;
d.
Award Plaintiff and other Class members actual and/or compensatory damages;
e.
Award equitable monetary relief, including restitution, to Plaintiff and the Class, and
require Google to disgorge, for the benefit of Plaintiff and the Class, monies,
revenues and/or profits Google received from unlawfully sharing Plaintiff and other
Class members’ search queries, results and information as set forth above;
f.
Establish a constructive trust, until further order of the Court, consisting of monies
Google improperly collected or received from its above-described illicit conduct;
g.
Award reasonable attorney’s fees and costs as allowed under applicable law; and
h.
Award such other further relief to which Plaintiff and the Class are entitled or as the
Court deems proper.
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JURY DEMAND
Plaintiff demands a trial by jury of all causes of action and matters so triable.
Respectfully submitted,
GABRIEL PRIYEV, individually and on behalf of all
others similarly situated
By:
/s Mark Bulgarelli
One of Plaintiff’s Attorneys
PROGRESSIVE LAW GROUP, LLC
MARK BULGARELLI
markb@progressivelaw.com
ILAN CHOROWSKY
ilan@progressivelaw.com
505 N. LaSalle St, Suite 350
Chicago, IL 60654
(312) 787-2717 (voice)
Attorneys for Plaintiff
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