Google Denied Ninth Circuit Review of Gmail Wiretapping Class Action

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Gmail privacy class action lawsuit accuses Google of violating federal wiretap laws by scanning users’ emails for marketing purposes without their knowledge or permission.

UPDATE: On March 18, 2014, Judge Koh denied Class certification for the Gmail privacy class action lawsuit.

Google Inc. was denied permission from a California federal judge on Monday to address the Ninth Circuit Court of Appeals for it’s opinion on two possible exceptions to the federal wiretapping law. The ruling comes after a September 2013 decision to deny Google’s request to dismiss multiple class action lawsuits accusing the company of violating the Wiretap Act by scanning users’ emails to create targeted advertisements.

According to the Internet giant, the wiretap laws in question would clear Google of the allegations that it illegally scanned its customers’ emails for marketing purposes if the laws in question were more clearly defined.

On Jan. 27, however, U.S. District Judge Lucy Koh said that the multidistrict litigation currently underway in the California federal court in San Jose was already too far along to delay it at this point.

In September, Koh made a narrow interpretation of the exception under the Electronic Communications Privacy Act, which covers wiretapping, saying that a company could not do everything it wanted to do “within the ‘ordinary course of business’ exception.” This was decided by the federal judge primarily “because Google’s interceptions violated Google’s own internal policies.”

The judge said in her ruling Monday that it would be better to let the Gmail privacy class action lawsuits play out to help save everyone money in additional legal fees, especially since the litigation began three years ago. She also said that Google could have taken the matter to the Ninth Circuit in 2011.

“Google had an opportunity to seek appellate review of a May 23, 2011 order rejecting Google’s motion to dismiss based on Google’s consent and ordinary course of business exception arguments, the same arguments that are the subject of this Court’s Sept. 26, 2013 Order, but Google chose not to do so,” Koh explained.

“The long and tortuous procedural history of this litigation . . . demonstrates why further delaying this three-year-old litigation for immediate appellate review is unwarranted,” she added.

Google had argued that it would be fitting to have the Ninth Circuit review the Gmail privacy class action lawsuit at this stage because that way the appellate court could establish a precedent on how the Electronics Communications Privacy Act should he interpreted in light of growing internet communications, which could also benefit similar email privacy lawsuits currently underway against Yahoo Inc. among others.

“However, the questions Google moves to certify do not address the thorny issues presented in other litigation pending before this court,” Koh explained. “For example, Google does not move to certify the question whether the consent exception to the state anti-wiretapping laws compels dismissal of the complaint in the instant litigation.”

The other related class action lawsuits have to do with alleged violations of the rights of nonusers, whose emails were scanned, and the matters Google proposed taking to the Ninth Circuit did not deal with non-Gmail users whose emails were scanned for marketing purposes even though they had not consented to Google’s terms and conditions.

The Google Gmail MDL began with a class action in Texas with additional ones being filed in California, Florida, Illinois, Maryland and Pennsylvania later on. The class action lawsuits allege that Google mined private information to obtain behavioral data but without having to pay third-party companies “traffic acquisition costs.”

The plaintiffs are represented by Sean F. Rommel of Wyly-Rommel PLLC, F. Jerome Tapley of Cory Watson Crowder & DeGaris PC and by James M. Wagstaffe, Nancy L. Tompkins and Michael K. Ng of Kerr & Wagstaffe LLP.

The consolidated Google Gmail Privacy Class Action Lawsuit is In Re: Google Inc. Gmail Litigation, Case No. 5:13-md-02430, in the U.S. District Court for the Northern District of California.