Google Must Face Gmail Privacy Class Action Lawsuit

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A California federal judge rejected Google’s bid to dismiss a proposed class action claiming the company violated federal and state privacy laws by checking user’s emails for advertising information.

U.S. District Judge Lucy Koh considered Google’s arguments in its motion to dismiss, relevant law, and the case record weighing whether Google violated the Wiretap Act in its operations of the Gmail system by intentionally intercepting the content of emails in order to create user profiles and to provide targeted advertising.

The Wiretap Act generally prohibits the interception of “wire, oral, or electronic communication[s]” through the use of “any electronic, mechanical, or other device.”

Plaintiff Daniel Matera initiated the privacy class action lawsuit against Google in September 2015 alleging the Mountain View-based technology giant never obtained permission from him or other non-Gmail users to scan contents of their emails in order to plant ads.

According to Matera, the practice of intercepting email messages violates the Wiretap Act since Google purposefully tracked and stored user data for targeted advertising purposes.

The plaintiff likened Google’ system of scanning all sent and received emails to the United States Postal Service searching through and opening mail.

He is seeking certification for a Class of non-Gmail users who correspond with Gmail users, allegedly exposing their private messages without consent.

Matera’s claims were consolidated into multidistrict litigation linked with a similar MDL pending in San Jose court over Google’s email scanning practices, known as In re: Google Inc. Gmail Litigation.

“Matera and In re Google concern substantially the same parties and events,” Judge Koh wrote in her consolidated order. “And it appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different judges.”

In February 2016, Google successfully sought to stay the complaint until the Supreme Court ruled on Spokeo Inc. v. Robins, stating the outcome of the high court’s decision will likely impact this case.

Once the Spokeo decision was reached, Google motioned to dismiss the proposed class action lawsuit, claiming the alleged interceptions fell within the “ordinary course” of Google’s business and were therefore exempt from anti-wiretapping statutes.

Google argued that “the use of data to target ads is routine and legitimate commercial behavior.”

But Judge Koh disagreed, ruling that Matera “plausibly alleges that Google’s alleged interceptions neither facilitate the provision of email services, nor are they an incidental effect of providing these services.”

“Thus, at the motion to dismiss stage, the court can not say that Google’s alleged interception of email is within the ‘ordinary course of business’ as a matter of law,” Judge Koh stated.

The judge further rejected Google’s motion for an interlocutory appeal to the Ninth Circuit.

Matera is represented by Michael W. Sobol, Nicole D. Sugnet and Michael Levin-Gesundheit of Lieff Cabraser Heimann & Bernstein LLP, Hank Bates of Carney Bates & Pulliam PLLC and Ray E. Gallo and Dominic R. Valerian of Gallo LLP.

The Google Privacy Class Action Lawsuit is Daniel Matera v. Google Inc., Case No. 5:15-cv-04062, in the U.S. District Court for the Northern District of California.

UPDATE: On Sept. 23, 2016, a federal judge trimmed the class action’s claim for an injunction, however claims based on the Wiretap Act will remain.

UPDATE 2: On Dec. 13, 2016, a proposed Gmail class action settlement would provide users of Google’s email service with no damages but would preserve their right to bring their own claim later.

UPDATE 3: On July 21, 2017, Google reportedly reached a revised $2.2 million email scanning settlement after a California federal judge rejected the original proposed class action settlement earlier this year.