Yahoo Fights Off Privacy-Invasion Class Action

     SAN JOSE, Calif. (CN) - Yahoo has asked a federal judge to dismiss a putative class action alleging that it intercepts, reads and records emails sent to its subscribers.
     The June 2012 federal complaint in San Jose, Calif., claims that Yahoo intentionally intercepts emails sent by non-Yahoo subscribers before relaying them to accountholders, in violation of the California Invasion of Privacy Act (CIPA).
     Yahoo allegedly uses "devices and techniques" designed to examine the words, content and thought processes contained within those emails.
     The case, led by named plaintiff Carson Penkava, is identical to two others filed against Google that same month, alleging that the Internet juggernaut violates California wiretapping laws by mining for information it uses to push ads to end users.
     Sacramento attorneys Clifford Carter and Kirk Wolden represent the plaintiffs in all three cases. Noting that discovery in the Yahoo case is ongoing, they declined to say much about that suit, but they gave some insight regarding Google.
     "It's exactly the same thing," Wolden told Courthouse News. "The case involves allegations Google is intercepting emails to Gmail users before their delivery. They are mining information so they can deliver targeted ads to their users. Yahoo disputes they are doing what Google is doing."
     Yahoo's motion to dismiss, filed Tuesday, says that Penkava failed to plead facts demonstrating it has violated CIPA. The law does not address email communications, Yahoo says.
     "The CIPA is a state statute governing unauthorized 'wiretaps' and 'eavesdropping' of 'confidential' communications without the 'consent' of all parties," according to the motion authored by Morrison & Foerster attorney Rebekah Kaufman. "Nowhere do its provisions purport to apply to email communications, much less the routine scanning and access of emails in which providers of electronic communications services (ECS), like Yahoo!, necessarily must engage to provide email service to their users."
     Yahoo further claims that the federal Electronic Communications Privacy Act (ECPA) trumps state law regarding electronic communications. This law "comprehensively regulates how ECS providers may use, store and access" email communications, according to the motion.
     Congress "intended ECPA to preempt any parallel state legislation, especially here where application of both the CIPA and ECPA would subject Yahoo! to criminal penalties and conflicting regulations in its nationwide provision of email services to its users," Yahoo adds. "Dismissal is proper on these grounds alone."
     Yahoo also alleges that the class action violates the dormant commerce clause in its "attempt to regulate email communication beyond California's borders." It also says that the CIPA claim, as pled, violates the due process and full faith and credit clauses of the Constitution.
     The motion also targets the complaint for failure to state a claim under the CIPA for pre-delivery access of emails.
     "Even if ECPA did not present a bar to plaintiffs' application of the CIPA and there were no Constitutional, due process or exterritorial concerns, plaintiffs' allegations are inadequate to state a claim under the CIPA," Yahoo says.
     If a judge does not dismiss the case, Yahoo wants the court to instead strike class allegations. It says there are individual issues of fact and that common questions of law do not predominate.
     A hearing on the motions is scheduled for March 21, 2013.