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In re Google Inc.

United States Court of Appeals for the Third Circuit

December 11, 2014, Argued; November 10, 2015, Opinion Filed

No. 13-4300

Opinion

 [*130]  OPINION OF THE COURT

FUENTES, Circuit Judge:

This class action arises from allegations that the defendants, who run internet advertising businesses, placed tracking cookies on the plaintiffs' web browsers in contravention of their browsers' cookie blockers and defendant Google's own public statements. At issue in this appeal is the District Court's dismissal of each of the nine claims brought by the plaintiffs. As follows, we will affirm in part, vacate in part, and remand to the District Court for additional proceedings.

I. Background

A. Internet Advertising and Cookie-Based Tracking

In most users' experience, webpages appear on browsers as integrated collages of text and images. As a technical matter, this content is delivered and aggregated from multiple independent servers. This includes advertising content, which is typically drawn from "third-party" servers owned by the advertisers themselves. The defendants in this case are internet advertising companies, and this suit concerns their practices in serving advertisements to the browsers of webpage visitors.

The delivery of advertising content from third party servers to webpage visitors' browsers is a highly technical [**3]  process involving a series of communications between the visitor's browser, the server of the visited website, and the server of the advertising company. In its specifics:

The host website leaves part of its webpage blank where the third-party advertisements will appear. Upon receiving a "GET" request from a user seeking to display a particular webpage, the server for that webpage will subsequently respond to the browser, instructing the browser to send a "GET" request to the third-party company charged with serving the advertisements for that particular webpage. . . . The third-party server responds to the GET request by sending the advertisement to the user's browser, which then displays it on the user's device. The entire process occurs within milliseconds and the third-party content appears to arrive simultaneously with the first-party content so that the user does not discern any separate GET requests from the third-parties.1

 [*131]  As the defendants deliver their advertisements directly to users from their own servers, the defendants have the capacity to vary how they populate their rented webpage space. This capacity permits targeting by which the defendants may serve different [**4]  advertisements to different visitors. The general principle is that the more that an advertisement is tailored to its audience—sneakers for runners, legal pads for lawyers—the greater the advertisement's expected value. Here, the value of customization, combined with the capacity for individuated advertisement service, impels internet advertisers to surmise whatever they can about each particular person requesting webpage content.

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806 F.3d 125 *; 2015 U.S. App. LEXIS 19581 **

IN RE: GOOGLE INC. COOKIE PLACEMENT CONSUMER PRIVACY LITIGATION. William Gourley; Jose M. Bermudez; Nicholas Todd Heinrich; Lynne Krause, Appellants

Subsequent History: US Supreme Court certiorari denied by Gourley v. Google, Inc., 2016 U.S. LEXIS 4597 (U.S., Oct. 3, 2016)

Prior History:  [**1] On Appeal from the United States District Court for the District of Delaware. (No. 1-12-md-02358). District Judge: Honorable Sue L. Robinson.

In re Google Inc. Cookie Placement Consumer Privacy Litig., 988 F. Supp. 2d 434, 2013 U.S. Dist. LEXIS 145727 (D. Del., 2013)

CORE TERMS

browsers, user, plaintiffs', advertisements, tracking, internet, third-party, communications, blocker, privacy, district court, Wiretap, website, defendants', intercepted, webpage, web, server, electronic communication, Surveillance, routing, stored communications act, transmissions, allegations, contents, electronic, intrusion, requests, parties, queried

Civil Procedure, Justiciability, Standing, Injury in Fact, Constitutional Law, Case or Controversy, Elements, Torts, Intentional Torts, Invasion of Privacy, General Overview, Substantive Due Process, Privacy, Communications Law, Federal Acts, Wiretap Acts, Fundamental Rights, Search & Seizure, Criminal Law & Procedure, Eavesdropping, Electronic Surveillance & Wiretapping, Pen Registers & Trap & Trace Devices, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Pleading & Practice, Pleadings, Rule Application & Interpretation, Responses, Motions to Dismiss, Evidence, Inferences & Presumptions, Inferences, Complaints, Requirements for Complaint, Business & Corporate Compliance, Communications Law, Stored Communications Act, Computer & Internet Law, Criminal Offenses, Computer Fraud & Abuse Act, Governments, Courts, Common Law, Intrusions, Antitrust & Trade Law, Consumer Protection, Deceptive Labeling & Packaging, State Regulation, Business Torts, Unfair Business Practices, Deceptive & Unfair Trade Practices