Google class action provides new weapon in privacy actions

Posted on: October 22nd, 2013 by Steve Larson

Online PrivacyA California federal judge on Thursday refused to dismiss a class action accusing Google, Inc. of violating the federal wiretap statute by scanning users’ emails to target advertising, providing plaintiffs that typically struggle to maintain privacy claims with a potentially powerful legal argument.  Google had moved to dismiss the plaintiffs’ unauthorized interception claims by arguing that its reading of any emails would fall within an “ordinary course of business” exception under the Electronic Communications Privacy Act.  Besides, it said, the plaintiffs had consented to Google’s interception of the emails by signing up for its services.

But U.S. District Judge Lucy H. Koh denied the motion to dismiss, ruling that scanning emails to create user profiles and to target ads could not be considered an instrumental operation for an email system. Furthermore, she found that Google’s policies did not explicitly notify the plaintiffs of any email interception.

The ruling provides a way to overcome the hurdles that often thwart data misuse claims.  If customers are not giving them explicit consent for activities that might fall outside the narrow scope of the “ordinary course of business” exception, plaintiffs may have a claim. 

The case is In re: Google Inc. Gmail Litigation, case number 5:13-md-02430, in the U.S. District Court for the Northern District of California.