News Organizations Push To Access Records In Gmail Privacy Battle

The New York Times Company, Atlantic Media, Forbes and a host of other news organizations are still fighting to unseal records in a lawsuit centering on whether Gmail ads infringe users' privacy, even though the underlying dispute has been resolved.

“The fact that a settlement has been reached should not be an obstacle to ruling on the motion or allowing access to documents,” the organizations say in papers filed last week.

They are asking U.S. District Court Judge Lucy Koh in San Jose, Calif. to rule on their February application to unseal thousands of pages of records that were filed in the course of the litigation. The New York Times and other news companies initially argued that Google shouldn't have submitted records under seal, without first showing a good reason to keep the material secret.

The news organizations said that Google's rationale for sealing the records boiled down to the proposal that “a nebulous economic harm ... could result from the public disclosure of any information about Google’s business model or technology.”

The privacy lawsuit, which was filed in 2010, stems from Google's efforts to monetize Gmail by scanning messages in order to serve targeted ads. The consumers who sued alleged that Google violated wiretap laws by intercepting emails without consent.

Last September, Koh rejected Google's argument that users consent to the scans by accepting the company's terms of service. Koh said at the time that Google didn't clearly explain to users that the company might send ads based on email content.

But Koh later handed Google a significant victory by refusing to allow the plaintiffs to proceed with a class-action. That ruling prevented users from entering into the kind of broad settlement that's resulted from other privacy class-actions. The users settled their individual lawsuits shortly after that ruling.

The media companies suggest in their latest court papers that the sealed records could shed light on Koh's refusal to allow the lawsuit to proceed as a class-action. “The public continues to have a strong interest in seeing the entire factual basis for the court’s class certification ruling in a case that affects the privacy of millions of Americans,” the publishers argue.

Google is opposing the news organizations' request. The company says that the news organizations have a weaker argument now than in February, given that the lawsuit was resolved without a sweeping class-action settlement that would affect all Gmail users.

“Now that the court has denied class certification with prejudice and each of the representative plaintiffs’ cases has been dismissed -- the need for the 'millions of class members' to have access to Google’s confidential information is necessarily diminished,” the company says in papers filed with Koh on Thursday.
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