“This case has the potential to not only affect the rights of the millions of class members, but also to set precedent on vital issues of first impression for privacy law,” the news companies argue in papers filed last week with U.S. District Court Judge Lucy Koh, in the Northern District of California. The news organizations are asking Koh to reject efforts by Google -- as well as consumers who are suing -- to keep some court documents private.
The news companies say that Google and the consumers haven't shown a need for secrecy. “The parties have failed to overcome the ... strong presumption that records filed in a civil case are available to the public,” the news companies argue. “Instead, the parties have asked the Court to reflexively seal thousands of pages of pages of documents in a case that could impact the privacy rights of millions of Americans.” The news organizations who brought the motion include Atlantic Media, Forbes LLC, National Public Radio, Inc., The New York Times Company, and Politico, among others.
The privacy lawsuit, which was brought in 2010, centers on Google's efforts to monetize Gmail by serving ads targeted to the contents of messages. The consumers who are suing say the company is violating wiretap laws by intercepting emails without consent.
Google lost a major battle in the case last September, when Koh ruled that Google might violate the law by scanning emails in order to surround them with ads. She specifically rejected Google's argument that people who send or receive Gmail consent to the automated scans.
The consumers subsequently sought class-action status and filed some of those papers under seal. Google, which opposes class-action certification, also has asked that portions of its arguments be kept from public view.
But the news organizations say that the public has the right to access court documents, absent a compelling reason -- such as preventing the disclosure of business secrets. The media groups add that even where disclosure of evidence could pose a business threat, any orders sealing the record should be crafted narrowly.
“The gravamen of Google’s arguments in favor of sealing is a nebulous economic harm that could result from the public disclosure of any information about Google’s business model or technology,” the news organizations write.
One example cited by the news organizations concerns an email exchange between Google employees, which Google said in its papers concerned discussions of “different Gmail systems’ ability and proficiency at performing certain tasks.”
The media companies say that Google merely offers an “unsupported conclusion that the revelation of any portion of this exchange would 'provide Google competitors with an understanding of Gmail’s internal architecture and its efforts to improve its systems.' " The news groups add: “Google provides no explanation why the email exchange must be sealed in its entirety, rather than redacting the specific details that would provide competitors with Google’s trade secrets.”
Santa Clara University law professor Eric Goldman, who has been following this lawsuit, cheered news of the media groups' involvement. “This is an important case with high stakes,” he says in an email to Online Media Daily. “I'm frustrated that litigants all too often overclaim confidentiality in their court filings, and judges don't always take them to task for the overclaiming.”
Koh has directed Google and the consumers to respond to the news organizations' request by next week.