That Well-Timed Ad Wasn’t Coincidental, Grandma

On March 18, 2014, the US District Court for the Northern District of California denied class certification in a suit alleging that Google violated state and federal anti-wiretapping laws in its operation of Gmail. The plaintiffs seeking class certification claimed in the their amended complaint that Google’s practice of scanning the emails of individuals who either use Gmail or exchange messages with those who do violates (1) the Electronic Communications Privacy Act of 1985; (2) California’s Invasion of Privacy Act; (3) Maryland’s Wiretap Act; and (4) Florida’s Wiretap Act. Judge Lucy H. Koh, who was assigned to this multi-district litigation, previously denied Google’s motion to dismiss, in part, ruling that Google’s terms of service and privacy policy did not provide sufficient disclosures to conclude that Gmail users had expressly consented to the alleged interception of their emails. The Court further rejected Google’s argument that all email users, regardless of whether they had viewed any disclosures, had impliedly consented to the alleged interceptions, because all email users, including non-Gmail users, understand that such interceptions are part of how emails are transmitted.

After denying Google’s motion to dismiss, the plaintiffs sought to certify four separate classes and three subclasses for the state wiretapping statutes Google allegedly violated. The proposed classes consisted of users of a cable system that contracted with Google to provide Google App and email service, users at educational institutions that used Gmail, Gmail users between the age of 13 and the age of majority, and all non-Gmail users that have sent emails to Gmail users. In her order denying class certification, Judge Koh primarily relied on the issue of “implied consent,” which she held to be an “intensely factual question that requires consideration of the circumstances surrounding the interception to divine whether the party whose communication was intercepted was on notice that the communication would be intercepted.” For example, a Gmail user could have read one of the numerous news articles that explained that Google was able to offer Gmail for free by scanning the content of emails for keywords so that it could display relevant advertisements to the Gmail user, and thus the user may have impliedly consented to Google’s interception by continuing to use Gmail or sending emails to Gmail users. Based on the numerous methods by which individuals could impliedly consent to Google’s alleged interception of emails, Judge Koh ruled that she would be forced to conduct individualized inquiries that would “overwhelm any common questions,” thus making class certification inappropriate. In re Google Inc. Gmail Litig., No. 13-MD-02430-LHK (N.D. Cal. Mar. 18, 2014).

Please contact Adam D. Bowser to discuss this decision’s potential impact on your company’s terms of service, privacy policy, and use of data more broadly.