Google scored a victory this week in a long-running Gmail lawsuit when a California judge denied a request to turn it into a class-action suit.
As a result, plaintiffs will be forced to pursue the case separately, a costly move that might not have a lucrative enough outcome to make it a worthwhile endeavor.
At issue is a feature within Gmail that anonymously scans the contents of peoples’ emails to serve up targeted ads on the right-hand side of the inbox. The lawsuit claims the practice violates federal and state wiretap laws, but Google has long held that scanning is done via an algorithm; no humans at Google are reading peoples’ emails.
In September, Judge Lucy Koh rejected Google’s request for dismissal after the search giant argued that “just as a sender of a letter to a business colleague cannot be surprised that the recipient’s assistant opens the letter, people who use Web-based email today cannot be surprised if their communications are processed by the recipient’s ECS [electronic communications service] provider in the course of delivery.” But Judge Koh found that the scanning of emails is not considered an “instrumental part of the transmission of email.”
Today, however, Judge Koh focused on whether the plaintiffs consented to the alleged interceptions within Gmail. In this case, she found, the consent issues are too different to combine into a class action.
“Specifically, there is a panoply of sources from which email users could have learned of Google’s interceptions other than Google’s TOS and Privacy Policies,” she wrote, pointing to Google-crafted websites, as well as media reports.
“Some Class members likely viewed some of these Google and non-Google disclosures, but others likely did not,” she continued. “A fact-finder, in determining whether Class members impliedly consented, would have to evaluate to which of the various sources each individual user had been exposed and whether each individual ‘knew about and consented to the interception’ based on the sources to which she was exposed.”
Ultimately, that would “lead to numerous individualized inquiries that will overwhelm any common questions,” the judge concluded.