Judge sides with plaintiff, refuses to dismiss wiretapping suit against Google

Judge Koh published her ruling on Google’s motion to dismiss today.
It’s a 43 page ruling, which I’m still digesting. But the short answer is that Google’s motion was denied almost in total. Google’s motion was granted for two of the claims: that email is confidential as defined by the California Invasion of Privacy Act (CIPA, section 632) and dismissal of a claim under Pennsylvania law.

For the foregoing reasons, the Court hereby GRANTS Google’s Motion to Dismiss with leave to amend with respect to Plaintiffs’ CIPA section 632 claims and Plaintiffs’ Pennsylvania law claim as it relates those who received emails from Gmail users. The Court DENIES Google’s Motion to Dismiss with respect to all other claims. Plaintiffs shall file any amended complaint within 21 days of this order. Plaintiffs may not add new causes of action or parties without a stipulation or order of the Court under Rule 15 of the Federal Rules of Civil Procedure. Failure to cure deficiencies will result in dismissal with prejudice.

The dismissals are a little easier to explain than what was granted. I’ll tackle those now. With the motion to dismiss, I will put together a longer post that discusses what the plaintiffs are alleging and what the judge found.
One of the claim’s by the plaintiff is that under the California invasion of privacy act (CIPA) email should be considered confidential. The act defines confidential communication as

any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

The judge dismisses this claim stating that the “[P]laintiffs have not plausibly alleged that they had an objectively reasonable expectation that their email communications were “confidential” under the terms of section 632.14” In an “overabundance of caution,” however, she grants the Plaintiffs leave to amend their complaint.
The plaintiffs are also making claims under other state laws in addition to California: Pennsylvania, Florida and Maryland. Google argued that Pennsylvania law only protects the sender of the message and since the plaintiffs are representing the receivers of the message, the law does not apply. The judge agrees, but granted the plaintiffs leave to amend the complaint.
All other motions were denied.
 

Related Posts

Questions on Google lawsuit post

A couple questions in the previous discussion thread about the Google privacy case. Both concern permission granted to Google to scan emails.
Google’s stance about this is fairly simple.
Gmail users give explicit permission for their mail to be scanned.
People who send mail to Gmail users give implicit permission for their mail to be scanned.
The plaintiff’s lawyers are alleging that some subset of gmail users – specifically those at Universities that use Google apps and ISP customers like CableOne – did not give explicit permission for their mail to be scanned by Google. They’re also arguing no senders give permission.
In addition to the lack of permission, the plaintiffs lawyers are arguing that Google’s behaviour is in violation of Google’s own policies.
Google thinks scanning is part of the ordinary course of business and they’re doing nothing wrong.
This is an interesting case. I think anyone who knows about email understands that the people who run the mail server have the ability to read anything that goes through. But a lot of us trust that most postmaster and admin types consider it unprofessional to look at mail without a decent reason. There are good reasons an admin might need to go into a mail spool.
Automated filtering is simply a part of life on the internet these days. Mails have to be scanned for viruses, spam and, yes, they are scanned for targeted advertising. I’m not convinced Google is outside the norm when they say that any emails sent through Google is personal information given too Google and therefore Google can use that information in accordance with their policies.

Read More

Gmail says no expectation of privacy, kinda.

Consumer Watch put out a press release yesterday about a court filing made by Gmail that says Gmail users have no expectation of privacy. I pulled a bunch of the docs yesterday, but have had no real time to read or digest them.
For recap users everything I pulled (and stuff other people have pulled) are available at Archive.org.
The initial complaint was filed under seal at the request of Google. The redacted complaint doesn’t tell us a lot, but it’s available for people to read if they’re interested.
The doc everyone is talking about is Google’s Motion to Dismiss. Everyone is up in arms about Google saying, in that filing, “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” (page 28, line 9). What no one seems to have mentioned is that this is actually a quote from a case that Google is referencing. The whole paragraph may lead one to a different conclusion.

Read More

Changes at Gmail

As I’ve said before, I can usually tell when some ISP changes their filtering algorithm because I start getting tons and tons of calls about delivery problems at that ISP. This past month it’s been Gmail.
There have been two symptoms I’ve been hearing about. One is an increase in bulk folder delivery for mail that previously was reliably hitting the inbox. The other is a bit more interesting. I’ve heard of 3 different mailers, with good reputations and very clean lists, that are seeing 4xx delays on some of their mail. The only consistency I, and my colleagues at some ESPs, have identified is that the mail is “bursty.”
The senders affected by this do send out mail daily, but the daily mail is primarily order confirmations or receipts or other transactional mails. They send bi-weekly newsletters, though, exploding their volume from a few tens of thousands up to hundreds of thousands. This seems to trigger Gmail to defer mail. It does get delivered eventually. It’s frustrating to try and deal with because neither side is really doing anything wrong, but good senders are seeing delivery delays.
For the bulk foldering, Bronto has a good blog post talking about the changes and offering some solid suggestions for how to deal with them. I’m also hearing from some folks who are reliable that Gmail may be rolling back some of the bulk foldering changes based on feedback from their users.
So if you’re seeing changes at Gmail, it’s not just you.

Read More