Koh, in the Northern District of California, ruled last month that Google potentially violates the wiretap law by scanning Gmail messages in order to serve ads. Google is seeking to appeal that ruling now, before the case goes to trial.
But the consumers say that an appeal isn't appropriate at this time. “That Google's 'business model' runs afoul of accepted and rational legal principles does not warrant Ninth Circuit review of the nascent record,” they argue in papers filed on Wednesday.
The dispute dates to last year, when a group of consumers alleged that Google violates the Electronic Communications Privacy Act by scanning emails in order to surround them with relevant ads. That law prohibits companies from intercepting electronic communications without users' consent, but has an exception for interceptions conducted in the ordinary course of business.
Google unsuccessfully asked Koh to dismiss the lawsuit before trial. The company argued both that users consented to the scans and that the scans are done in the ordinary course of business.
Koh ruled against Google on those issues, prompting the company to ask Koh to send the case to the 9th Circuit so that court could decide the questions. But the consumers counter that Google isn't entitled to a pre-trial appeal, since it hasn't shown the questions raised by the case “are novel or difficult in any meaningful sense.”
Koh's ruling last month stunned many observers, especially because Gmail has been supported by contextual ads since the service rolled out in 2004. Santa Clara University law professor Eric Goldman says in an email to Online Media Daily that the decision “has put the entire email industry in turmoil.”
He adds that all sorts of routine scanning -- including spam and virus filtering -- could be illegal under Koh's interpretation of the wiretap law. “We need a quick resolution to this issue, so an expedited appeal would be beneficial both for Google (as it considers if it needs to change or shut down Gmail) and everyone else in the email industry.”