Judge Jacqueline Corley Scott in the Northern District of California denied a motion to dismiss a claim that a website’s use of Google Analytics violated California Penal Code § 631. Defendant argued that plaintiffs failed to plausibly allege that Google Analytics intercepted or read communications “while in transit,” as required by the statute. The court disagreed.
- Interception While in Transit: The statute requires that the alleged eavesdropping occur during the transmission of the communication, not after it has reached its destination. The plaintiffs’ amended complaint detailed how Google Analytics’ JavaScript code allegedly intercepts, reads, and analyzes user communications in real time as users interact with the website—before the data reaches the website’s servers. The court found these allegations sufficient at the pleading stage, emphasizing that factual disputes about the technical operation of Google Analytics could not be resolved on a motion to dismiss.
To allege a predicate act under the second clause, a plaintiff must allege the eavesdropping occurred “while the [communication] is in transit.” Cal. Penal Code § 631(a). “ ‘While’ is the key word here.” Valenzuela v. Keurig Green Mountain, Inc., 674 F. Supp. 3d 751, 758 (N.D. Cal. 2023). “[I]nterception under the meaning of the statute must occur during transmission of the communication.” Hazel v. Prudential Fin., Inc., No. 22-cv-07465-CRB, 2023 WL 3933073, at *2 (N.D. Cal. June 9, 2023) (cleaned up) (collecting cases). So, “the crucial question under § 631(a)’s second clause is whether [Plaintiffs] ha[ve] plausibly alleged that [Google] read one of [their] communications while it was still in transit, i.e., before it reached its intended recipient.” Mastel v. Miniclip SA, 549 F. Supp. 3d 1129, 1137 (E.D. Cal. 2021) (citing Mireskandari v. Mail, 12-cv-02943-MMM (FFMx), 2013 WL 1219559, at *10 n.44 (C.D. Cal. July 30, 2013)).
Here, Plaintiffs plausibly allege Google intercepted communications while they were in transit to Defendant. Namely, Plaintiffs allege Defendant’s website uses the “Google Analytics Javascript code” which, “while Plaintiffs and Class members were and are interacting with the Psychology Today website, Google, concurrently and in real time, did and does intercept, read, and analyze user communications and interpret the contents of those communications for Google subsequently to use for its advertising and analytics purposes.” (Dkt. No. 55 ¶ 6.) Google “markets the real-time reporting capabilities of Google Analytics and boasts that ‘Realtime reports’ allow website hosts to ‘monitor activity on your website as it happens.’ ” (Id. ¶ 40.) And Google states “you can immediately and continuously monitor the effects that new campaigns and site changes have on your traffic.” (Id.; see also id. ¶ 41 (alleging the code reads user inputs in Defendant’s website “while those communications are in transit to the host website.”).) Further, the code “interprets and selects, in real time, which portions of the communications Google will use for further processing and analysis.” (Id. ¶ 42.)
- Reading or Attempting to Read Communications: Liability under § 631 also requires that the third party “read, or attempt to read, or to learn the contents or meaning” of the communication. The plaintiffs alleged that Google Analytics not only collects data but also interprets and selects portions of user communications for advertising and analytics purposes while the data is still in transit. The court held that these allegations plausibly suggest an effort to understand the substantive meaning of the communications, satisfying the statutory requirement.
While Plaintiffs allege Google Analytics prepares reports with the data after the data has been stored, they also allege Google Analytics reads, interprets, and selects the data while it is in transit. (Dkt. No. 55 ¶ 60.) Plaintiffs allege that as users input information into the website, Google “interpret[s] and select[s] specified portions of the user’s interactions and communications to be used for advertising and analytics, all while the transmissions are in transit to the Psychology Today website servers.” (Id. ¶ 63; see also id. ¶ 41 (“the Google Analytics JavaScript code intercepts, reads, and analyzes the substantive content of a user’s interactions and communications while they are in transit to the host webpage. The JavaScript code then interprets and selects, in real time, which portions of the communications Google will use for further processing and analysis. The intercepted information is read by Google while the entire communication travels from the user to the host website.”).) These allegations, drawing all reasonable inferences in Plaintiffs’ favor, plausibly plead Google performs “some effort at understanding the substantive meaning of the message.” Torres, 2025 WL 1135088, at *5 (cleaned up).
R.C., et al., Plaintiffs, v. SUSSEX PUBLISHERS, LLC, Defendant, No. 24-CV-02609-JSC, 2025 WL 1735994 (N.D. Cal. June 23, 2025).
