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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.

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Motion to dismiss in Penkava v. Yahoo case

Earlier this month Yahoo filed a motion to dismiss in the Penkava v. Yahoo. This is the class action lawsuit where an Alabama resident is attempting to sue Yahoo for violation of the California wiretapping law.
Here’s the short synopsis.
People send mail to Yahoo. Yahoo “creeps and peeps” on that mail so they can profit from it. Plaintiff doesn’t like this, and thinks that he can use the California Invasion of Privacy Act (“CIPA”), (Cal. Penal Code § 630, et seq;) to stop Yahoo from doing this. Additionally, there is a whole class of people who live in every state but California who have also been harmed by Yahoo’s actions. The plaintiff would like the court to make Yahoo stop doing this. (First Amended Complaint)
Yahoo’s motion to dismiss is actually pretty dry and there aren’t really any zinger pull quotes that make sense without reading the whole 35 pages. The short version is that what Yahoo is doing is not a violation of California law, it is simply handling email as it has to be done to get it to recipients. Plus, California law cannot apply to mail sent from a non-CA resident to a non-CA resident because that would violate the dormant commerce clause. The class as defined makes no sense. Finally, the plaintiff continues to send mail to Yahoo addresses knowing the mail is being “scanned” and that is implicit permission for Yahoo to do it.
In the initial complaint there was an allegation that Yahoo’s behaviour was a violation of Federal and/or California Wiretapping laws. These allegations appear to have been dropped in the First Amended Complaint.
Right now there is a hearing scheduled for March 13, 2013. I’ll keep an eye on the filings.

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Penkava v. Yahoo: wiretapping

According to stipulations filed yesterday Penkava and Yahoo! have agreed to go to private arbitration. This will happen before September 1, 2013. Also filed yesterday was an agreement that Yahoo! has until September 7, 2012 to respond to the complaint.

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