Google Can’t Kill Email Privacy Claims

SAN JOSE, Calif. (CN) - A federal judge seemed unwilling to toss out a sprawling class action that accuses Google of using Gmail to mine data and invade the privacy of users.

Updates that the company made to its privacy policy last year drew a tsunami of class actions that accused Google of aggregating the information it collects from users of its various apps and platforms. The plaintiffs in those cases claimed that the new policy - which went into effect in March 2012 - violates various state and federal computer fraud, eavesdropping and wiretap laws.

In California, lead plaintiffs Brad Scott and Todd Harrington claim that the web-based service scans emails for words and content, and intentionally intercepts messages between non-Gmail subscribers and subscribers.

Describing such actions as wiretapping and eavesdropping, the class there says Google is in violation of the California Invasion of Privacy Act, or CIPA. Google pointed out last year, however, that the Scott and Harrington cannot cloak themselves with California privacy laws by filing suit in Marin County when they actually reside in Alabama and Maryland, with no connection to the Golden State.

The claims have since been combined into the massive In re Google, Inc. - Gmail Litigation, leading Google to ask U.S. District Judge Lucy Koh for dismissal at a hearing Thursday.

Google lawyer Whitty Somvichian of the firm Cooley LLP said the company's practice of scanning emails is used solely for its targeted advertising scheme and to enhance its other services.

"It's a legitimate business function," Somvichian argued. "All users of email must necessarily expect that their emails will be subject to automated processing."

Google defended its various privacy polices and terms of service going back as far as 2007, which all warn users that information the company gets from the use of its services may be used to target advertising or enhance the Google experience.

Judge Koh indicated, however, that the policies do not go far enough to inform users of the scope of Google's practices.

"I don't see any explicit warnings in the user agreements that emails will be read for targeted advertising purposes," Koh said.

Citing the March 2012 privacy policy, Somvichian said: "'Information we get from your use of our services.' I don't think there's any ambiguity."

Koh pressed the lawyer as to Google would not "just say 'the content of your emails.'"

Somvichian noted that Google's privacy policy is an attempt at a streamlined policy encompassing its many services. He also said that Gmail users can opt out of targeted advertising and added that its scheme is for "the benefit of the user."

But plaintiffs' attorney Sean Rommel fired back, saying Google's practices benefit Google alone.

"Emails are not postcards, they're private transmissions protected by Congress," Rommel said. "Google reads every single email sent. Advertising is the greatest smokescreen in the modern era."

Google again reiterated that the non-California plaintiffs have no standing to sue under CIPA. The fact that the company is headquartered in California is not sufficient for nonresidents to invoke state laws to make their claims, Somvichian said.

Rommel reminded the court, however, that federal privacy and wiretapping laws are at issue in the case as well.

"This company reads on a daily basis every email that's submitted, and when I say read I mean looking at every word to determine meaning," Rommel said. "Including messages from non-Gmail users to Gmail users, who never agreed to Google's terms of service."

"Every Gmail user gives Google a lifetime license to use every email received and sent," Rommel added. "That's astonishing and the scariest thing I've ever heard."

While Koh indicated she would take Google's dismissal motion under advisement, she did not say when she would make her decision. She also informed the parties that they would meet next month to decide on a 2014 trial date.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit