Judge: Google Must Face Gmail Privacy Class Action Lawsuits

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A California federal judge has denied Google Inc.’s request to dismiss litigation accusing the company of violating the Wiretap Act by scanning users’ email to create targeted advertisements, finding that the company’s actions do not fall under an exception to the federal law.

The Google Gmail multidistrict litigation (MDL) is made up of six separate individual and class action lawsuits from California, Florida, Illinois, Maryland and Pennsylvania. The plaintiffs accuse Google of illegally accessing information contained in emails sent to and from Gmail accounts without obtaining permission from the sender or recipient.

Plaintiffs claim that this action violates the Electronic Communications Privacy Act of 1986 and other laws. Plaintiffs further allege that Google used the mined content for undisclosed purposes and used the information to send targeted advertisements without being subjected to “traffic acquisition costs” from third-party information harvesters.

“The court finds that the ordinary course of business exception is narrow,” Judge Lucy H. Koh in her September 26 decision. “The exception offers protection from liability only where an electronic communication service provider’s interception facilitates the transmission of the communication at issue or is incidental to the transmission of such communication. Specifically, the exception would apply here only if the alleged interceptions were an instrumental part of the transmission of email.”

However, plaintiffs in the Gmail privacy class action lawsuit MDL argued that the data collection is not related to the company’s ability to operate a functioning email system. In her decision to reject Google’s motion to dismiss the litigation, Judge Koh agreed with the plaintiffs.

“In fact, Google’s alleged interception of email content is primarily used to create user profiles and to provide targeted advertising — neither of which is related to the transmission of emails,” Judge Koh said. “The court further finds that plaintiffs’ allegations that Google violated Google’s own agreements and internal policies with regard to privacy also preclude application of the ordinary course of business exception.”

Judge Koh also rejected Google’s argument that its Gmail users had agreed to the terms under its terms of service and privacy policies. She found that the policies did not adequately notify the plaintiffs that Google would scan users’ emails for the purpose of creating user profiles and providing targeted advertising.

Judge Koh granted Google’s motion to dismiss some claims under California’s Invasion of Privacy Act, finding that emails have not been established as confidential communications under California law. “Unlike phone conversations, email services are by their very nature recorded on the computer of at least the recipient, who may then easily transmit the communication to anyone else who has access to the Internet or print the communication,” she said.

The plaintiffs are represented by Wyly-Rommel PLLC, Kerr & Wagstaffe LLP, Cory Watson Crowder & DeGaris PC, Golomg Honik PC, Slocumb Law Firm LLC, Goldenberg Heller Antognoli, and Rowland PC.

The Google Gmail Privacy MDL is In Re: Google Inc. Gmail Litigation, Case No. 5:13-md-02430, in the U.S. District Court for the Northern District of California.

UPDATE: On Jan. 27, 2014, Judge Koh denied a motion by Google to have the Ninth Circuit review possible exemptions under the Wiretap Law that could derail the Gmail privacy class action lawsuit.

UPDATE 2: On March 18, 2014, Judge Koh denied Class certification for the Gmail privacy class action lawsuit.