Page:Theodore H. Frank, et al. v. Paloma Gaos, individually and on behalf of all others similarly situated, et al..pdf/2

2 phrase. The complaints alleged that when an Internet user conducted a Google search and clicked on a hyperlink to open one of the webpages listed on the search results page, Google transmitted information including the terms of the search to the server that hosted the selected webpage. This so-called referrer header told the server that the user arrived at the webpage by searching for particular terms on Google’s website.

Paloma Gaos challenged Google’s use of referrer headers. She filed a complaint in Federal District Court on behalf of herself and a putative class of people who conducted a Google search and clicked on any of the resulting links within a certain time period. Gaos alleged that Google’s transmission of users’ search terms in referrer headers violated the Stored Communications Act, 18 U. S. C. §2701 et seq. The SCA prohibits “a person or entity providing an electronic communication service to the public” from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service.” §2702(a)(1). The Act also creates a private right of action that entitles any “person aggrieved by any violation” to “recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.” §2707(a). Gaos also asserted several state law claims.

Google moved to dismiss for lack of standing three times. Its first attempt was successful. The District Court reasoned that although “a plaintiff may establish standing through allegations of violation of a statutory right,” Gaos had “failed to plead facts sufficient to support a claim for violation of her statutory rights.” Gaos v. Google, Inc., 2011 WL 7295480, *3 (ND Cal., Apr. 7, 2011). In particular, the court faulted Gaos for failing to plead “that she clicked on a link from the Google search page.” Ibid.

After Gaos filed an amended complaint, Google again moved to dismiss. That second attempt was partially