Judge Koh Denies Google’s Motion in Wiretap Case

The New York Times reports that Federal District Court Judge Lucy Koh of the Northern District of California has denied Google’s motion to dismiss in the wiretap suit against it.  The lawsuit concerns Google’s practice of scanning email messages and using the content found within to tailor the advertisements presented to Gmail users.  Plaintiffs include voluntary Gmail users, Gmail users by employment, and non-Gmail users whose messages were received by a Gmail user.

According to the Times, the complaint alleges that the scanning of an email message constitutes a violation of state and federal antiwiretapping laws, specifically the Electronic Communications Privacy Act.

Last week Judge Koh denied Google’s motion to dismiss, essentially ruling that plaintiffs may proceed with their case against Google.  In doing so, Judge Koh rejected two of Google’s central arguments.

First, citing a legal exception that exempts communications that are intercepted necessarily in the ordinary course of business, Google argued that its actions were not violative of the statute.  Judge Koh, however, said:

In fact, Google’s alleged interception of e-mail content is primarily used to create user profiles and to provide targeted advertising — neither of which is related to the transmission of e-mails.

Google also asserted that Gmail users consent to the email scanning practice when they agree to the terms of service and privacy policy.

Google argued that non-Gmail users, too, have consented to this practice by engaging with Gmail users, analogizing it to “a sender of a letter to a business colleague [who] cannot be surprised that the recipient’s assistant opens the letter . . . ” (as articulated by The Times).

Judge Koh again disagreed:

Accepting Google’s theory of implied consent — that by merely sending e-mails to or receiving e-mails from a Gmail user, a non-Gmail user has consented to Google’s interception of such e-mails for any purposes — would eviscerate the rule against interception.

As soon as I get a hold of the full opinion, I’ll be sure to post it.  But, for now, you can read the Times article here.