Google Data-Mining Claims Broken Into Individual Cases

     SAN JOSE, Calif. (CN) – A class action is not suitable to resolve whether Gmail users consented to Google’s data mining for targeted ads, a federal judge ruled Tuesday.
     Updates Google made to its privacy policy in 2012 launched a tsunami of class actions accusing the company 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.
     The claims have since been combined into the massive In re Google Inc. – Gmail Litigation. The plaintiffs in the cases proposed four classes and three subclasses: Cable One users who have a Gmail address as part of their Internet packages, colleges and universities that use the Google Apps for Education platform, Gmail users under the age of 18, and U.S. residents who have ever sent or received emails to or from a Gmail user.
     The subclasses include plaintiffs from California, Florida and Maryland who are suing under their states’ wiretap laws.
     U.S. District Judge Lucy Koh refused this past fall to dismiss the sprawling putative class action, finding that Gmail’s interceptions fall outside the narrow “ordinary course of business” exceptions carved out of federal electronic privacy laws.
     Late Tuesday, however, she noted that the tech giant’s different terms and policies for the classes and subclasses made the matter impossible to litigate collectively.
     “The court finds that with respect to the education class, the substantial individual questions regarding the nature of each Google Apps administrator’s disclosures are likely to lead to individual questions regarding express consent that will predominate over common questions,” Koh wrote. “The court need not determine whether classwide express consent questions will predominate over individual questions with respect to the minor class, Cable One class, and the non-Gmail user classes because the court finds that individualized questions regarding implied consent will overwhelm any common issues regarding these classes.”
     And while the judge had previously rejected Google’s argument that all email users give implied consent to interceptions they know are part of the email delivery process, those questions of what users know and have consented to will also generate thousands – if not millions – of different answers.
     “The court finds that individual issues regarding consent are likely to overwhelmingly predominate over common issues,” Koh’s 41-page ruling states. “Specifically, there is a panoply of sources from which email users could have learned of Google’s interceptions other than Google’s terms of service and privacy policies.”
     Koh noted that Google’s own pages explaining the interceptions have been viewed over a million times, and that the case has received significant press coverage.
     “Some class members likely viewed some of these Google and non-Google disclosures, but others likely did not,” Koh wrote. “A fact finder, in determining whether class members impliedly consented, would have to evaluate to which of the various sources each individual user had been exposed and whether each individual knew about and consented to the interception based on the sources to which she was exposed. This fact-intensive inquiry will require individual inquiries into the knowledge of individual users. Such inquiries – determining to what disclosures each class member was privy and determining whether that specific combination of disclosures was sufficient to imply consent – will lead to numerous individualized inquiries that will overwhelm any common questions.”
     The judge also denied a late request by the plaintiffs – which came at the end of a reply brief – to make a fourth pitch for class certification.
     “Entertaining plaintiffs’ belated request would prejudice Google, which has been opposing class certification motions in this litigation since September, 2011, and which did not have the opportunity in the briefing on the instant motion to oppose plaintiffs’ request to refile,” Koh wrote. “Moreover, the court finds that when asked about plaintiffs’ request to refile at the hearing, plaintiffs’ counsel did not provide any persuasive basis for allowing such refiling. Accordingly, the denial of the class certification motion is with prejudice.”

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