Google class action provides new weapon in privacy actions

Online PrivacyA California federal judge on Thursday refused to dismiss a class action accusing Google, Inc. of violating the federal wiretap statute by scanning users’ emails to target advertising, providing plaintiffs that typically struggle to maintain privacy claims with a potentially powerful legal argument.

Google had moved to dismiss the plaintiffs’ unauthorized interception claims by arguing that its reading of any emails would fall within an “ordinary course of business” exception under the Electronic Communications Privacy Act.  Besides, it said, the plaintiffs had consented to Google’s interception of the emails by signing up for its services.

But U.S. District Judge Lucy H. Koh denied the motion to dismiss, ruling that scanning emails to create user profiles and to target ads could not be considered an instrumental operation for an email system. Furthermore, she found that Google’s policies did not explicitly notify the plaintiffs of any email interception.

The ruling provides a way to overcome the hurdles that often thwart data misuse claims.  If customers are not giving them explicit consent for activities that might fall outside the narrow scope of the “ordinary course of business” exception, plaintiffs may have a claim.

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.

Steve Larson
An experienced trial lawyer who handles both hourly and contingent fee cases, Steve has expertise in class actions, antitrust litigation, securities litigation, corporate disputes, intellectual property disputes, unfair competition claims, and disputes involving family wealth. Steve regularly represents individuals and businesses in federal and state court and has obtained class-wide recovery in multiple class actions. A veteran practitioner, Steve's clients value his creative approach to resolving complex litigation matters.

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