updated 03:15 pm EDT, Wed March 19, 2014
Judge Lucy Koh, of Apple versus Samsung fame, denies suit combination
US District Judge Lucy Koh has handed a partial victory to Google in a privacy suit against the search engine. In a Tuesday decision, the judge rued that a handful of lawsuits the company is facing may not be combined into a class-action suit, as the suits lack sufficient commonality. Based on the ruling, the myriad of filers must be heard individually or in smaller groups, escalating costs to the complainants.
The variety of suits allege different issues, but generally accuse Google of violating privacy and wiretap laws by scanning emails to generate account profiles. Additionally, Google is accused of illicitly using this information contextually, rather than by random keyword, to target advertising to users of its services.
The lawsuit-initiating claim by one group of complainants believes that "Google actually diverts email messages to separate devices to extract the meaning from the message. These separate devices do not deliver the message, nor do they simply spell-check, index, or highlight words. Google designed these devices to capture the authors' actual thoughts ('thought data') for Google's secret use." Presumably, this "thought data" would help Google sell better targeted advertising to users, which is what the filers have taken umbrage to.
Google attempted to torpedo the suit in the fall, claiming that merely using Google services gives the search engine de facto permission to gather the data and use it as it sees fit. The judge refused that notion, instead saying in the most recent ruling that the matter of how users found out about potential data gathering was relevant.
In its rebuttal, Google claims 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 provider in the course of delivery. Indeed, 'a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.'" By that logic, critics have pointed out, users of traditional mail services should have no expectation that their letters would not be delivered unopened and unread by every individual who happens to handle it.
"There is a panoply of sources from which email users could have learned of Google's interceptions," the judge ruled. Shutting down the class-action suit, the judge declared that "determining to what disclosures each class member was privy, and determining whether that specific combination of disclosures was sufficient to imply consent, will lead to numerous individualized inquiries that will overwhelm any common questions."
The claimants may refile for class action in the future, should the argument be modified sufficiently. Attorneys representing the potential class had no response to the judge's ruling.