Google is asking a federal appellate court to turn away a group of consumers who say their privacy is violated by Gmail ads.
The consumers recently asked the 9th Circuit Court of Appeals for permission to immediately appeal U.S. District Court Judge Lucy Koh's recent decision denying them class-action status in the case. Theoretically, that ruling still allows the consumers to move forward as individuals, but not on behalf of other people who have used Gmail to send or receive mail. As a practical matter, however, the decision could make it prohibitively expensive for the consumers to go ahead with the lawsuit.
The consumers filed papers under seal, noting that their legal arguments refer to factual matters that Google had sought to keep confidential. Google, which publicly filed its response last week, argues that the consumers haven't shown any “legitimate reason” for an immediate appellate review.
The lawsuit centers on Google's practice of scanning Gmail messages in order to surround them with targeted ads. The consumers argue that the scans violate the federal wiretap law, which prohibits companies from intercepting electronic communications without at least one party's consent.
Google counters that Gmail account holders consent by accepting the company's terms of service, and that non-account holders implicitly consent by using the service.
In September, Koh rejected Google's bid to dismiss the case outright. But she ruled more recently that the consumers can't proceed as a class-action, because one of the main contested issues will be whether people consented to the email scans. Koh said that questions about consent require individual determinations -- especially because people could have learned about Google's email scanning program from a multitude of press reports.
Google, which says Koh's decision denying class-action certification was correct, points to some of those reports in its most recent court papers. “There have been thousands of articles in various media outlets that have described Google’s automated scanning of Gmail messages since Gmail’s inception,” the company writes. “These reports appeared in such widely viewed and varied outlets like The New York Times, The Washington Post, CBS News, National Public Radio, the Houston Chronicle, Economist and the Milwaukee Journal Sentinel, and have undoubtedly been seen by millions.”
The company argues that those news reports are part of the “surrounding circumstances” that should be evaluated when determining whether consumers consented to the email scans. that can show whether users consented. “There is no suggestion in any authority proffered by petitioners that an analysis of the 'surrounding circumstances' must be limited to disclosures that come directly from the defendant,” the company says.
Meanwhile, the consumers and Google are trying to resolve the dispute in mediation. They are slated to provide a status update to Koh later this week.