In the two weeks since U.S. District Court Judge Lucy Koh ruled that a class-action against Google could move forward, Yahoo has been hit with two potential class-actions. At this point, it's probably safe to say that more are on the way. In the cases filed so far, the consumers who sued don't themselves have Yahoo email accounts, but say they have sent messages to Yahoo users.
Those consumers argue that they never consented to Yahoo's terms of service, which state that the company scans email messages and serves ads. Unfortunately for Yahoo, the company's best argument might be similar to one that landed Google in hot water with advocates -- that email users have no expectation of privacy.
Google argued in court that the non-Gmail users had no case because they shouldn't have expected their emails to remain completely private. Here are the company's exact words, taken from its legal papers: “Just as a sender of a letter to a business colleague cannot be surprised that the recipient’s assistant opens the letter, people who use web-based email today cannot be surprised if their communications are processed by the recipient’s ECS provider in the course of delivery.”
The group Consumer Watchdog later embarrassed Google by calling attention to this language. But, even though Google might not have helped its public reputation with its legal stance, it also appears to be the company's best argument against the non-Gmail users. Koh rejected Google's contention on that point, but her ruling likely won't be the last word on the matter.
Google also was faced with wiretap allegations by Gmail account holders. Google argued that those people consented to the company's terms of service, which said it would scan messages. Koh disagreed, ruling that the terms of service weren't clear enough. She said that even though Google told users it would scan messages for security purposes, the company didn't clearly state it was scanning messages in order to serve contextual ads.
Whether Koh's rationale will hold up isn't clear yet, but at least one legal expert is skeptical. George Washington law professor Orin Kerr contends in a recent blog post that the important fact is whether Google told people it would scan their emails, and not the reasons it gave for doing so. “The key question is whether the user received notice of the monitoring, not whether the user received an accurate explanation of the reason for the monitoring or what would happen after the monitoring occurred,” Kerr says.