Judge Ready to Approve Gmail Data-Mining Deal

SAN JOSE, Calif. (CN) – A federal judge indicated on Thursday that she will approve a preliminary settlement between Google and users whose email content was scanned for advertising purposes.

“I intend to grant preliminary approval for the settlement in this case,” U.S. District Judge Lucy Koh during a hearing Thursday afternoon.

At the heart of the case is Google’s practice of intercepting emails sent to Gmail customers, and scanning the content of those emails for two purposes — weeding out spam content and for targeted advertising.

Daniel Matera and other plaintiffs sued in September 2015, saying Google’s practice of scanning emails in transmission for the purpose of creating user profiles for its Gmail customers and engaging in targeted advertising was similar to AT&T eavesdropping on conversations between customers or the U.S. Postal Service reading letters sent between private citizens.

Google said the preliminary settlement it reached with the plaintiffs in the case means that the company will stop scanning emails for advertising purposes altogether.

“We’ve stopped scanning emails used for government, universities and businesses as part of a different case,” Google attorney Whitty Somvichian said during the hearing. “Now we are aligning our consumer application and there will be no more ad-related scanning of email content.”

This development seemed to please Koh, who lambasted both sides the last time they were in court seeking preliminary approval in March. At the time, Koh felt the settlement did not go far enough to bring about a positive result for class members, particularly as there was no requirement to provide customers with disclosures regarding what and how Google used consumer data lifted from emails.

This time around, Google has agreed to end the practice of scanning emails in transit to or from Gmail users’ accounts. The case is one of many to revolve around California’s wiretapping law, which bars companies from intercepting communications in transit for reasons other than ensuring the effective delivery of the correspondence.

Courts have ruled scanning emails for spam and malware content is part of ensuring the proper function of email delivery, but using the content for purposes of advertising while still in transit violates wiretapping laws.

A class won a preliminary settlement from Yahoo in a similar case, which was used as a template in the Google cases. However, the plaintiffs have acknowledged that wiretapping laws only prevent tech companies from intercepting messages, and say nothing about scanning emails for advertising purposes once the email is in the inbox or in storage.

Somvichian acknowledged Google could have developed automated algorithms designed to scan emails once in storage, using the content to develop user profiles which it could sell to corporations and to provide targeted advertising to Gmail users.

Instead, the tech giant has opted to cease this practice, Somvichian said. The news won Koh over.

“I thought ceasing the scanning for government, business and university emails was a positive outcome for that case, and I think extending that to consumers is a great outcome for this case,” she said.

The ban on scanning emails will last for three years. Koh asked why the practice indefinitely would not extend indefinitely, and Somvichian said Google had to maintain its capacity to be nimble in a shifting regulatory environment and could not commit to indefinite agreements.

Koh seemed to accept the explanation, indicating she would approve the settlement. She set a hearing on final approval of the settlement for February 2018.

Plaintiffs’ attorney Michael Sobol told Courthouse News he was pleased that Koh seemed intent on accepting the settlement reached with the technology titan.

Sobol works for Lieff Cabraser Heimann & Bernstein in San Francisco. Somvichian works for Cooley LLP, also in San Francisco.

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