Google Hopes to Archive Gmail Privacy Prostests

(CN) - Google has renewed its objections to a class action alleging that it intercepts emails and eavesdrops on online users in violation of California privacy laws.

In a brief filed in San Jose, the tech giant says two lead plaintiffs took "isolated words out of context" and misapplied state law, which "does not reach emails and electronic communications."

Brad Scott and Todd Harrington sued Google in June for violation of the California Invasion of Privacy Act.

They claim that Gmail scans emails for words and content, and intentionally intercepts messages between non-Gmail subscribers and subscribers.

Google moved to dismiss the lawsuit in October, but the class responded earlier this month that California has a compelling interest in enforcing privacy laws over companies that hang their hats in the Golden State.

Still resistant, Google shot these arguments down in a reply filed Wednesday with U.S. District Judge Lucy Koh.

"Plaintiffs' opposition provides no viable support for their effort to apply the California Invasion of Privacy Act, Penal Code §§ 630, et seq. ('CIPA'), to criminalize the automated processing of emails," according to the reply authored by Cooley LLP attorney Whitty Somvichian.

"First, plaintiffs cannot point to any statutory terms in CIPA that refer to emails or electronic communications; nor can they cite any authority that applies CIPA in the manner they propose," Somvichian wrote. "Instead, plaintiffs seek to expand the statute by taking isolated words out of context while ignoring the express limitation of the statute to specific forms of communications.

"Second, plaintiffs ask the court to disregard the legislative history, which confirms that CIPA does not reach emails and electronic communications. ...

"Third, Plaintiffs' interpretation of CIPA should be rejected because it would criminalize widely accepted practices associated with the delivery of emails, used not only by Google but by email service providers generally. ...

"Last, the court need not reach the substantive issue of whether CIPA applies to emails at all, because plaintiffs are non-California residents and cannot invoke the protections of a California statute that is intended to protect 'the people of this state.'"

Scott and Harrington are Maryland and Alabama citizens, respectively.

Google rejects their claims that no court has addressed the alleged "eavesdropping" and "wiretapping," and that new technology must be subject to the same rules as telephone and telegraph communication.

"Plaintiffs' opposition asks the court to make new law by holding that CIPA criminalizes the automated processing of emails," Google's 23-page brief states. "But they cannot point to any term in the statute that actually refers to emails or electronic communications in any way. Nor do plaintiffs cite a single case that applies CIPA to emails. To the contrary, all of the cases plaintiffs cite regarding CIPA involve the recording of telephone calls." (Emphasis in orginal.)

Koh is scheduled to hear the case on March 21.

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