Commentary

Judge Won't Throw Out Privacy Lawsuit Over Gmail

Google can't shake a privacy lawsuit alleging that it unlawfully scans Gmail messages.

In a ruling issued late last week, U.S. District Court Judge Lucy Koh in the Northern District of California ruled that people who are suing Google can proceed even without proof of financial injury.

Koh rejected Google's argument that the case should be dismissed due to a recent Supreme Court ruling in a matter involving the online data broker Spokeo. That decision stemmed from allegations that Spokeo violated the Fair Credit Reporting Act by posting incorrect information about a consumer. The Supreme Court ruled in May that Spokeo was entitled to dismissal, unless the consumer could show that the errors caused him a "concrete" injury.

The ruling stems from a lawsuit filed last year by San Francisco resident Daniel Matera, who said he doesn't have a Gmail account, but is forced to communicate with Gmail users due to the "ubiquity of Gmail."

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Matera, like others who have sued Google and Yahoo over email ads, alleged that Google "intercepts" email messages and sells ads based on their contents. He accused Google of violating the federal wiretapping law as well as a California privacy law.

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.

The company argued that the lawsuit over its email practices should be dismissed for several reasons, including that Matera didn't allege that he suffered concrete injuries. "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 wrote earlier this year.

But Koh said that Matera's allegations warranted further proceedings, noting that people filed lawsuits for invasion of privacy long before lawmakers passed specific laws protecting electronic communications, including the federal Wiretap Act.

"Invasion of privacy has been recognized as a common law tort for over a century," Koh wrote.

"The Court concludes that the judgment of Congress and the California Legislature indicate that the alleged violations ... constitute concrete injury in fact," she added. "This conclusion is supported by the historical practice of courts recognizing that the unauthorized interception of communication constitutes cognizable injury," she wrote.

While the ruling is a loss for Google, the company won't necessarily have to stop scanning emails as a result of the case.

Yahoo, which was also sued for allegedly violating users' privacy by scanning email messages, recently settled the litigation by adding new language to its privacy policy, and agreeing to make some technical changes to the way it scans emails. That deal, which was finalized last month, doesn't otherwise obligate the company to change its practices. The settlement requires Yahoo to pay up to $4 million to the class-action attorneys who brought the lawsuit.

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