Google Urges Judge To Dismiss Claims Over Gmail Privacy

A recent Supreme Court decision involving the online data broker Spokeo entitles Google to prevail in a battle over email privacy, the company argues in new court papers.

Google makes the argument in response to allegations that the company violates federal and state privacy laws by scanning emails in order to surround them with ads. San Francisco resident Dan Matera, who says he doesn't have a Gmail account, said in a lawsuit filed last year that Google illegally "intercepts" email messages. Matera says he is forced to communicate with Gmail users due to the "ubiquity of Gmail."

Google's terms of service currently disclose that it analyzes the contents of email messages for features including "tailored advertising." But Matera says that as a non-Gmail user, he never agreed to those terms.

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Google previously persuaded U.S. District Court Judge Lucy Koh in San Jose to postpone the case pending the Supreme Court's decision in a case involving Spokeo. That matter stemmed from a 2010 lawsuit by Virginia resident Thomas Robins, who alleged the company violated the Fair Credit Reporting Act by posting incorrect information about him, including that he was in his 50s, married with children, and employed in a professional or technical field. The Fair Credit Reporting Act requires credit reporting agencies to take steps to ensure the information they provide to potential employers is accurate.

Spokeo asked the Supreme Court to dismiss the lawsuit, arguing that Robins shouldn't be able to proceed without showing that he was injured by any errors.

The Supreme Court ruled last month that Robins can only proceed in federal court if he can show that Spokeo's errors caused him a "concrete" injury.

Google now says it's entitled to dismissal of Matera's case, arguing that he can't show a concrete injury. "Plaintiff does not allege, for example, that the alleged violations led to the disclosure of his confidential information to third parties, or that he suffered any other purported harm from the alleged 'interceptions' of his emails," Google writes in papers filed with Koh on Wednesday.

For his part, Matera argues that he should be able to proceed with the case. "The privacy intrusion inherent in the interception of email content is not some violation of a mere procedural requirement intended to prevent some downstream or consequential injury, but rather is the injury itself," he argues.

Before the Supreme Court ruled in the Spokeo matter, Google resolved a separate lawsuit stemming from its email scans after unsuccessfully arguing that consumers consented to the scans.

Yahoo, also recently agreed to resolve a battle over email scans. That settlement, which isn't yet final, requires Yahoo to add new language to its privacy policy, and to make some technical changes to the way it scans emails, but doesn't require the company to otherwise change its ad-targeting efforts. The agreement doesn't call for Yahoo to pay monetary damages to Web users whose privacy allegedly was violated, but provides for payments of up to $4 million to the attorneys who brought the case.

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