Google, facing a trial over whether it broke wiretapping laws when it scanned users’ e- mails, has asked a California federal judge to let it ask a higher court to review her interpretation of the law.
Google (Nasdaq: GOOG) won this week dismissal of a lawsuit over claims it violated computer users’ rights by slipping electronic “cookies” into their Web browsers to help placement of ads. U.S. District Judge Sue L. Robinson in Wilmington, Delaware wrote that the users didn’t demonstrate that Google intercepted any “contents or meaning” under California’s Invasion of Privacy Act.
In that, Google said in a previous court filing that scanning e-mails is “a standard and fully disclosed part of the Gmail service” which is “completely automated and involves no human review.”
Plaintiffs say the company exploits the content of messages “for its own benefit unrelated to the service of e-mail” and for profit.
U.S. District Judge Lucy H. Koh in San Jose last month said plaintiffs could pursue allegations that Google violated federal law by reading private e-mails of subscribers to its Gmail service to build user profiles and aid advertisers. Google said her reading of the law was so “novel” as to require review.
“This court’s ruling that Google might be found liable for illegal wiretapping because of its operation of its Gmail system made national headlines, and has already spurred copycat litigation against other e-mail service providers,” Google said yesterday in a court filing. “The court’s ruling was a novel interpretation of wiretapping statutes enacted and amended by Congress long before the rise of the Internet.”
Users of Gmail and other e-mail services from states including Texas, Pennsylvania, Maryland and Florida contend in the suit that Google, operator of the world’s largest search engine, “does not disclose the extent of its processing,” according to a May 16 court filing. The case consolidates seven individual and group lawsuits.
Google, based in Mountain View, California, has said that Gmail customers knew of and allowed automated scanning, which facilitated security, spam protection and other services.
In refusing to dismiss the case, Koh examined what was allowable by law as part of normal business practice and whether e-mail users really understood what they were consenting to when they set up Gmail accounts. She faulted Google on both points, while throwing out some claims.
“The court finds that it cannot conclude that any party — Gmail users or non-Gmail users — has consented to Google’s reading of e-mail for the purposes of creating user profiles or providing targeted advertising,” she said in the ruling.
Her opinion on the meaning of consent — that customers must be consenting to something explicit and clearly explained in a company’s policies — stirred interest from lawyers bringing group suits against Internet companies for violations of privacy.
“Her decision is enormously important,” said David Straite of Kaplan Fox & Kilsheimer LLP, who represented Facebook Inc. users in a privacy suit that the social-network company is seeking to dismiss.
