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Privacy Class Action Against Google Denied

By Sarah O’Loughlin – Edited by Ken Winterbottom Order Denying Plaintiffs’ Motion for Class Certification, In re Google Inc. Gmail Litigation, Case No. 13-MD-02430-LHK (N.D. Cal. Mar. 18, 2014) Order hosted by InsidePrivacy [caption id="attachment_4265" align="alignleft" width="150"] Photo By: rovlls - CC BY 2.0[/caption] Google, Inc. scored a victory last week when a U.S. judge denied class certification to Gmail users attempting to sue the company for violating the privacy rights of hundreds of millions of email users. On March 18, 2014, District Judge Lucy Koh issued an opinion, finding that the issue of consent is too fundamental to the case and too different among the parties seeking class action status together. The lawsuit alleges that Google’s data-mining practices used in its Gmail electronic-messaging service violate federal and state wiretap and privacy laws. Plaintiffs argue that Google has been improperly intercepting, reading, and mining the content of e-mails for targeted advertising in an attempt to build user profiles. The suit covers several different groups, including people who send e-mails to Gmail users as well as non-Gmail accounts users who pay to use the Google Apps service. Bloomberg and Ars Technica provide further commentary on the allegations, and HuffingtonPost provides further context to the student privacy aspect of the lawsuit. Google contests these issues, claiming that it is acting within “the normal range of  business activities” and that it is within its rights to scan e-mails sent between Gmail users for targeted ad display based on e-mail content, reports Consumer Affairs. However, Judge Koh denied Google’s motion to dismiss the case in September, however, when she failed to accept the argument that anyone sending an e-mail to a Gmail user has implicitly consented to Google scanning the e-mail’s content for purposes of ad feeds. Although Koh indicated in her ruling that the lawsuit against Google has merit, a class action cannot be formed unless the central issues of the case are common to the entire class. Koh found the consent issue too varied, explaining that “the Court finds that individual issues of consent are likely to predominate over any common issues, and that accordingly, class certification would be inappropriate.” Order, at 26. This decision dealt a big blow to the complainants. While some sources, like Ars Technica, think this could mean the end of the case altogether, others such as Reuters instead report that this will likely lead to individual or small group claims with smaller damage recoveries. Either way, this denial rids the complainants of some of their bargaining power with Google. The Register notes that individuals are likely to have a hard time paying for expensive litigation against Google’s deep pockets. Prior to the March 18th ruling, this case had the potential to become the largest group lawsuit ever, explains Stanford Law School Professor Deborah Hensler. Potential damages were estimated reaching into the trillions of dollars. Koh’s ruling also has the potential to implicate other pending e-mail privacy cases, including lawsuits against Yahoo! Inc. (YHOO:US) and LinkedIn Corp. (LNKD:US), both of which involve millions of internet users. This myriad of cases, in addition to others brought against Facebook Inc. and Hulu, show a huge backlash against how companies are monetizing data for the online advertising market.