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Media Outlets Put Google’s Feet|to the Fire in Gmail Wiretap Suit

SAN JOSE, Calif. (CN) - A federal judge should keep public materials in the lawsuit alleging that the running of Gmail violates wiretap laws, several media outlets said in a new amicus brief.

Google's motion to seal documents and effectively "litigate this case in secrecy" must be denied, 26 media companies said in a Tuesday brief to U.S. District Judge Lucy Koh.

The news outlets and affiliated organizations include Courthouse News Service, Forbes, Gannett, McClatchy, The New York Times, NPR and Politico.

Google's updates to its privacy policy in 2012 unleashed a tsunami of class actions nationwide that accused the tech giant of aggregating the information it collects from users of its various apps and platforms. The plaintiffs in the cases - now combined into the massive In re Google Inc. - Gmail Litigation claims Google's policies violate federal computer fraud, eavesdropping and wiretap laws.

Koh denied Google's bid to dismiss the sprawling action this past October, finding that Gmail's automated scanning of every email the service sends and receives falls outside the narrow "ordinary-course-of-business" exception carved out of the federal Electronic Communications Privacy Act, known as ECPA.

While Google had sought permission to appeal Koh's decision to the 9th Circuit Court of Appeals, Koh held last month that the case had progressed too far to stop now.

As for the media organizations, the amicus brief noted "the public interest in this case cannot be overstated," given Google's millions of users and the case's first-impression look at the issue of email privacy.

The groups also took umbrage at Google's attempts to lower the established standard for sealing court documents by claiming economic harm would result if the world discovers how Gmail works.

"While Google focuses on the remote chance that disclosure of this information would damage its business, Google entirely fails to demonstrate why this information is a trade secret," the amicus brief states. "Local Civil Rule 79-5 only allows litigants to seek to seal information that is a trade secret. California law defines 'trade secret' as 'information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.' Google's motions entirely fail to even allege that the information at issue meets these requirements. Much of the information that Google seeks to seal relates to the general operation of an email service that is freely available to millions of people worldwide. Google does not specifically allege how this information provides independent economic value. Likewise, Google does not discuss any efforts that it has taken to maintain the secrecy of this information."

The groups also took the class to task for their requests to seal, claiming they are "allowing Google to unilaterally determine whether to seal documents."

To date, Google has filed six requests to seal documents related solely to the class-certification proceedings.

A hearing on the amicus brief is slated for Feb. 27.

The media organizations are represented by Thomas Burke and Jonathan Segal of Davis Wright Tremaine in San Francisco.

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