Class Won’t Let Google Off Privacy Suit So Easy

(CN) - A class urged a federal judge to let them advance claims that Google intercepts emails and eavesdrops on online users in violation of California privacy laws.

Lead plaintiffs 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.

The plaintiffs filed their complaint in Marin County Superior Court, but Google removed the case to the federal court in San Jose. The search giant then moved to dismiss in October, saying that the state law makes no mention of "electronic communication," "email," "Internet" and "computer."

In their opposition to that motion, the class says no court has addressed the alleged "eavesdropping" and "wiretapping," and new technology must be subject to the same rules as telephone and telegraph communication.

"Google is opening and reading people's email without their consent and before delivery to the intended recipient," according to brief authored by attorney Clayeo Arnold. "In justifying its admitted conduct, Google argues California's statute does not prohibit such conduct because email is not specifically mentioned in §§631 and 632, despite the Legislature's acknowledgement and desire to preclude of new forms of illicit surveillance."

In addition to arguing that California's privacy statutes are not intended to address emails or other electronic communications, Google has noted that the plaintiffs are citizens of Alabama and Maryland, and that they have not tied their emails to California.

The dismissal motion also alleges that the complaint fails to cite additional elements of the act related to wiretapping and eavesdropping.

"In the context of emails, multiple courts have recognized that no one can reasonably expect that the emails they send to others will be free from the automated processing that is normally associated with delivering emails," Google said.

"Plaintiffs fail to articulate a single concrete injury stemming from the automated processing of emails sent to Gmail users," it added. "Plaintiffs instead rely on conclusory allegations that their privacy rights were infringed in the abstract."

The class disagrees.

"The Google processes at issue, wholly separate from any automation necessary to deliver mail, actually involve acts of reading, learning, and recording content and meaning from private communications - something no court has addressed to date," their 30-page opposition states.

"California has a compelling and overriding interest in requiring resident companies like Google to conduct their business and to compete in accordance with Cal. Penal Code provisions requiring the observation of privacy rights," Arnold added.

The class also says that the state's privacy law "has consistently been interpreted 'broadly' by the California Supreme Court and in a manner which militates against efforts designed, like Google's present plan, to place artificial and illogical limitations on the protections afforded by California's Invasion of Privacy Act."

Simple automated processes for email are not on trial, "despite Google best efforts to introduce its concepts that any automated processes for the delivery and protection of email is justified and necessary," the brief continues.

U.S. District Judge Lucy Koh is scheduled to hear the motion and opposition on March 21.

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