Grist to the Google Mill: Calif. Judge Finds a Way to Continue Claims Against Internet Giant
by Jose Landivar, Arther Law’s Industry Insider
A judge in California refused to toss out a class action lawsuit against Google this past Thursday over allegations that the company violated a federal wiretap statute by scanning user’s emails for the purpose of targeted advertising.
U.S. District Judge Lucy Koh, allowed the plaintiffs’ claim to proceed on the grounds that Google’s privacy policies did not provide explicit notification of email interceptions and that scanning emails to profile users in order to send out targeted ads were not “instrumental operations” for an email system or within the “ordinary course of business” exception provided under the Electronic Communications Privacy Act.
Sources say that the ruling provides a boost to plaintiffs and attorneys across the country who are litigating internet privacy cases, as the judge, by setting boundaries over what type of data mining falls within the scope of the “ordinary course of business exception” under ECPA, has provided grist to overcome the many obstacles litigants face when bringing class action claims over the misuse of data. Acccording to litigator, Eulonda Sykes at Orrick Herrington & Stucliffe, LLP: “[T]his ruling should be a wake-up call to the Internet industry that plaintiffs’ privacy class action suits can indeed pose substantial legal exposure and liability.”
Although the ruling raises the bar for litigants attacking revenue-driven data-mining practiced across the country by other free internet service providers, and puts those companies on warning to possibly provide stronger notification of industry practices to their users, attorneys say that the statute’s application may not be as clear-cut as it seems. After all, business models and technology have drastically changed since ECPA was legislated in 1986. According to Timothy Toohey, partner at Snell & Wilmer LLP, “the opinion’s conclusion that Google’s use of information in emails does not occur in the ‘ordinary course of business’ seems to ignore the fact that providing advertising in return for free services now is ‘ordinary’ and even ‘routine’ for many Internet services. The model is far different from the one that prevailed when [EPCA] was passed, when users paid a company for services, such as telephone companies.”
The conclusion reached by many attorneys (according to Law 360) would be for Congress to amend ECPA in order to clearly define what activities fall within the ‘ordinary course of business’ exception.
The case, part of an increased movement in litigation against Internet companies’ alleged violations of privacy laws, was argued in the Northern District Court of California by nine plaintiffs whose individual cases were consolidated before Koh earlier this year. Plaintiffs had maintained that Google violated several laws, including federal anti-wiretapping statutes by reading private emails in order to maximize profits, crossing the “creepy line” set by privacy advocates.
The case however, only advances the plaintiffs’ claims pass the “plausible” claims test employed by the Federal courts and does not yet reward plaintiffs with an actual win. Judge Koh’s position may change once underlying evidence is considered.
The case is In re: Google Inc. Gmail Litigation, case number 5:13-md-02430, in the U.S. District Court for the Northern District of California.
Sources: Law 360, Rueters.
1 Allison Grande, Google’s Email Setback Hands Weapon To Privacy Plaintiffs, Law 360.com, September 27, 2013, http://www.law360.com/articles/476411/google-s-email-setback-hands-weapon-to-privacy-plaintiffs (last viewed September 30, 2013).