The overwhelming majority of a user privacy class action lawsuit filed against Google Inc. can continue, according to a recent U.S. District Court’s decision in California. The rationales cited in the decision could have significant ramifications for online privacy concerns moving forward.
Plaintiffs in the Google Gmail privacy class action lawsuit had argued that the reading or analysis of emails by Google software or employees was not necessary for the company to provide Gmail services. The court agreed, with the decision citing case law regarding what acts are permitted. While the provision of advertising is part of Google efforts, it is not connected to the company’s ability to provide email services. Even if they were, the judge cited failures in adherence to company policy in noting that the actions could not be pursuant to normal company business.
Specifically, the privacy policies that were issued beginning soon after Gmail’s launch allegedly did not contain any information regarding the company’s use of email content to derive its advertising to users according to allegations by class action attorneys. The Court reviewed the policies’ language and found no instances of Google expressly noting that it would engage in the recording of emails.
Even if were the policies more clear, several plaintiffs in the putative Gmail user privacy class action lawsuit were not Gmail users and Google could not reasonably allege that they had offered implied consent to have their emails recorded, according to the decision. Finally, even if the Gmail policies were adequate in notifying users that the company could access and maintain data for advertising purposes, the statement by Google that “advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information” only informs users that the information *could* be tracked.
Nor can Google argue that it is a utility since it does not own any physical property that aids in the provision of internet services in the states where plaintiffs reside, the Court said. However, the judge is requesting plaintiffs amend two sections of the class action lawsuit: one regarding the alleged confidentiality of the conversations and Pennsylvania state law regarding wiretap protections of senders and recipients of electronic communications.
The consolidated cases are In Re: Google Inc. Gmail Litigation, Case No. 13-md-02430, U.S. District Court, Northern District of California.
UPDATE: On Jan. 27, 2014, Judge Koh denied a motion by Google to have the Ninth Circuit review possible exemptions under the Wiretap Law that could derail the Gmail privacy class action lawsuit.
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