Wiretap Act Applies in Yahoo Mail Spying Class Action Lawsuit, Plaintiffs Say

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In their response to Yahoo Inc.’s motion to dismiss the class action lawsuit accusing the company of illegally reading emails, plaintiffs argued on Wednesday that the federal Wiretap Act applies to Yahoo’s allegedly illegal actions in this case.

The plaintiffs in this consolidated class action lawsuit accused Yahoo of unlawfully intercepting the contents of emails sent to Yahoo! Mail accounts from non-Yahoo! Mail accounts for the purpose of using the information to make money from targeted advertising, data collection and other services. Earlier this year, six cases, including Brian Pincus v. Yahoo Inc. and Kevranian, et al. v. Yahoo Inc., were consolidated in California federal court. The consolidated complaint alleges that Yahoo’s storage of non-Yahoo users’ emails to Yahoo users, as well as allegations that Yahoo shares this information with third party advertisers, “violates the federal Wiretap Act or, in the alternative, the Stored Communications Act, as well as the California Invasion of Privacy Act and plaintiffs’ constitutional right to privacy.”

Yahoo filed a motion to dismiss the consolidated class action lawsuit, arguing the federal Wiretap Act does not apply to the allegations in the complaint “because once an email ‘hits’ a Yahoo server it is no longer an electronic communication capable of being intercepted for the purposes of either Act.”

“Congress enacted the Electronic Communications Privacy Act ‘to afford privacy protection to electronic communications,'” the plaintiffs argue. “Moreover, accepting Yahoo’s argument would require the Court to find that emails shift in and out of the Wiretap Act’s protection during their journey from sender to recipient, a result that is contrary to both the plain language of the statute and its legislative history.” Plaintiffs allege “Yahoo does not disclose when or how it scans its users’ incoming and outgoing email, an issue that will be the subject of discovery and expert opinion in this case.”

The plaintiffs also disagree with Yahoo’s argument that they obtained consent under the User Agreement. The motion states, “Plaintiffs’ Wiretap Act claim should not be dismissed on the grounds that Yahoo obtains its users’ consent because a trier of fact must decide the scope of Yahoo Mail users’ consent and whether Yahoo exceeds that consent. The statement in Yahoo’s Communications Terms of Service provides only a broad and imprecise description of Yahoo’s practices.”

The plaintiffs also argue that Yahoo’s actions should not be excused under an exception for actions completed in the “ordinary course of business,” arguing that, in similar litigation regarding Google, “the Court held that [this] exception ‘is narrow and designed only to protect electronic communication service providers against a finding of liability under the Wiretap Act where the interception facilitated or was incidental to provision of the electronic communication service at issue. The Court concluded that the plaintiffs had plausibly alleged that Google’s interception of emails for the purpose of creating user profiles and delivering targeted advertising was ‘not instrumental to Google’s ability to transmit emails.'”

The plaintiffs argue further that, in the alternative, their claims under the Stored Communications Act, as well as the California Invasion of Privacy Act and plaintiffs’ constitutional right to privacy should stand. The plaintiffs also requested a leave to amend the class action lawsuitif necessary.

The plaintiffs are represented by Daniel C. Girard, Amanda M. Steiner, Matthew B. George and Jennifer L. McIntosh of Girard Gibbs LLP and Laurence D. King, Frederic S. Fox and David A. Straite of Kaplan Fox & Kilsheimer LLP.

The Yahoo Email Scanning Class Action Lawsuit is In re: Yahoo Mail Litigation, Case No. 5:13-cv-04980, in the U.S. District Court for the Northern District of California.

UPDATE: On Feb. 5, 2015, plaintiffs filed a motion for Class certification in the consolidated Yahoo email scanning class action lawsuit.

UPDATE 2: On Jan. 7, 2016, plaintiffs asked a judge to grant preliminary approval to a proposed class action settlement that requires Yahoo to make several changes to its website and email servers.