The Electronic Privacy Information Center (EPIC) filed a lawsuit on Wednesday to compel the Federal Trade Commission (FTC) to enjoin Google’s planned changes to its privacy settings. On March 1, 2012, Google intends to modify its privacy settings by sharing user information between its services. For example, keywords in user’s private emails could affect search results on YouTube.
Just last year, Google settled with the FTC over allegations that it violated its own privacy policy by opting users into Google Buzz without their consent. The settlement requires Google to obtain consent from its users prior to making any changes to its third party sharing policies, including its communication with advertisers. EPIC argues in this lawsuit that Google’s recent privacy changes violate the settlement by “failing to obtain affirmative consent from users prior to sharing their information with third parties and by misrepresenting the extent to which the company protects users’ private information.”
Although EPIC is filing for an injunction, the problems of collecting and disseminating data to other services is reminiscent of the Dwyer case. Future tort plaintiffs would have difficulty demonstrating intrusion upon seclusion given the four elements which must be alleged to state a cause of action. Similar to Dwyer, having a privacy policy to which users of Google must assent would tend to show that intrusion was not in fact unauthorized. Nor does the intrusion seem offensive, though the information may be considered private. Shibley would tend to support that conclusion.
From the point of view of Stan Karas the information Google uses to communicate with its other servers would reveal private facts regarding a person’s identity, however, the case law suggests that Google would not be liable in tort for intrusion upon seclusion or appropriation.