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Google Wants Wiretap Law Review Before Trial

SAN JOSE, Calif. (CN) - Google asked a federal judge Wednesday for permission to take questions about federal wiretapping laws to the 9th Circuit before a Gmail class action advances any further.

Updates Google made to its privacy policy last year - allowing the company to collect and aggregate user information across its many platforms and apps - spawned a wave of actions that accuse the company of violating federal and state wiretapping, privacy and computer fraud laws by scanning and reading millions of user emails daily.

The multi-district claims have since been combined into a single, massive class action titled In re Google, Inc. - Gmail Litigation.

Google's lawyers urged U.S. District Judge Lucy Koh to toss the mega-suit last month, arguing that its practice of scanning emails is used solely for targeted advertising and serves a legitimate business purpose. They also noted that Gmail users agree to Google's terms of service when they join, including warnings that information gleaned may be used for advertising or to enhance the Google experience.

But Koh declined to dismiss the majority of the sprawling class action, finding that Gmail's interceptions fall outside the narrow "ordinary course of business" exception carved out of the Electronic Communications Privacy Act, known as ECPA. She also noted that Google's policies do not extract explicit consent from users, another exception to ECPA on which the company relied.

In a filing late Wednesday, Google said it wants questions about those ECPA exceptions sent to the 9th Circuit for review before litigation goes forward.

"The court's ruling on its construction of the 'ordinary course of business' exception involves a controlling question of law on which there is substantial ground for difference of opinion, and as to which an immediate appeal may materially advance the ultimate termination of the litigation," Google said in its filing.

The company also noted the importance of its request for the ever-changing internet business and in the face of an antiquated law.

"This question may have widespread effects on a broad swath of internet industries, and thus presents an issue of important precedential value for other cases," Google said. "As internet-based businesses continue to grow in unexpected ways beyond what anyone could have ever predicted when ECPA was passed in 1986, these important questions will only arise more frequently.

"The interests of internet-based businesses, electronic communication service providers, and the general public thus would be served by receiving immediate appellate clarification on this issue," Google continued. "Further, there is every indication that the number of lawsuits on this issue will increase - not only does this class action incorporate six separate complaints gathered from across the nation, but just one week after the court issued the order another class action was filed in this district against Yahoo alleging claims materially identical to those here. Expeditious resolution of this issue will thus conserve judicial resources for this court in this case, and for courts in similar cases."

Google said internet businesses could also use clarification of the term "user consent" when it comes to their privacy policies and terms of service.

"Much like the 'ordinary course of its business' exception, the 'prior consent' question presents an issue of great importance to future litigation and to internet-based business and internet users," Google stated. "Whether (1) Google's terms of service and privacy policy are sufficient to provide notice here; and (2) websites are required to list every conceivable purpose of every conceivable use of a user's information in its terms of service, are both issues likely to arise in the future that could direct the course of how such provisions are written. Businesses and users alike could only be served by receiving clarity on this important issue."

The company continued: "If the 9th Circuit finds that plaintiffs consented to Google's automated scanning and reverses the order, the action may be terminated in its entirety. And because the case is at such an early stage, resolution of such a threshold issue at the outset will save the parties and the court significant time and resources by avoiding potentially unnecessary discovery and motion practice."

A trial date is tentatively set for late 2014.

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