Privacy Class Action|Against Google Survives

SAN JOSE (CN) - A federal judge handed Google a major defeat in a class action privacy complaint for intercepting and scanning emails before they reach the inbox of the intended recipient.

U.S. District Judge Lucy Koh found that Google's interception policy may violate the California Wiretap Act, and denied Google's motion to dismiss.

Google claimed that intercepting emails, scanning their content and using it for targeted advertising is an ordinary part of how emails are delivered and received.

Koh rejected that Friday, saying in a 38-page order that Google's interception and scanning of the emails was not necessary or intrinsic to the process of email delivery, but was done so that Google could sell the data it collected or use it for targeted advertising.

"Under the plain meaning of the Wiretap Act, the 'ordinary course of business' exception protects an electronic communication service provider's interception of email where there is 'some nexus between the need to engage in the alleged interception and the [provider's] ultimate business, that is, the ability to provide the underlying service or good,'" she wrote. (Brackets in complaint.)

Lead plaintiff Daniel Matera claims that Google is intercepting and scanning emails for commercial purposes.

Google argued that the snooping is an intrinsic part of the service, for the only way it can keep its email service free and pay for the cost of maintaining it is through targeted advertising.

Thus, Google said, targeted advertising, facilitated by interception and scanning of emails, is part of the ordinary or routine elements of its business.

Koh appeared to acknowledge that the argument had some validity, but said it was not appropriate at this stage, as Matera has plausibly alleged that Google's conduct violates the Wiretap Act.

"Plaintiff plausibly alleges that Google's alleged interceptions neither facilitate the provision of email services, nor are they an incidental effect of providing these services," Koh wrote. "Thus, at the motion to dismiss stage, the Court cannot say that Google's alleged interception of email is within the 'ordinary course of business' as a matter of law."

In an indication of how new this area of developing law is, Koh's colleague, U.S. Magistrate Judge Paul Grewal, ruled differently in a separate Google-related case, interpreting the "ordinary course of business" exemption in the Wiretap Act as a means of protecting routine and customary business practices by communications providers.

Koh disagreed, citing other rulings in which judges said the businesses themselves should not be allowed to determine the scope of the law's implications.

"Magistrate Judge Grewal's reading of the 'ordinary course of business' exception to encompass any customary and routine business practice, regardless of the nexus to the electronic communication service, gives too little weight to the word "ordinary" as well as to the electronic service provider's particular business," Koh wrote.

The case is not the first against Google for its email targeted advertising practices.

In 2013, users filed a putative class action against Google, claiming its email service practices violated wiretap laws. Koh refused to certify the class in 2014, saying the plaintiffs had such varying claims they could not be tried as a group.

Matera, who was involved in the initial class action, claimed that he was never a customer of Google, but because of the ubiquity of the email service he has sent emails which Google has intercepted, scanned and analyzed.

Matera also claims that Google interprets the content through an algorithmic process called Nemo, which helps it determine how to monetize the data it gathers by selling it or in targeted advertising.

In a separate case filed this year, prominent universities sued Google, claiming it provides email services so it can mine the data of students.

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