Gmail Subject to Wiretap Claims

Google Inc. must face claims it violated federal wiretap law by intercepting and reading email messages over Gmail during the routing process in order to send ads to users.  U.S. District Judge Lucy Koh ruled Thursday that Google must face federal claims by a class of Gmail users.  Koh, in San Jose, also refused to dismiss state law claims from Maryland and Florida.  But she did agree to dismiss the California and Pennsylvania state law violation claims, however, she allowed the plaintiffs to file amended state law claims.

The lawsuit alleges that targeted advertising was not the only purpose of the alleged interception.  The suit claims Google devices intercept email to collect content as well as data to create user profiles and models to “advance Google’s profit interests.”

Google contends it did not engage in an interception of emails because its reading of users’ emails “occurred in the ordinary course of its business.”

But Koh said the wiretap law applies the business exception narrowly and applies only when interception facilitates transmission of communication or is incidental to the transmission.

“In fact, Google’s alleged interception of email content is primarily used to create user profiles and to provide targeted advertising – neither of which is related to the transmission of emails,” Koh said.

Accordingly, she said she would deny Google’s motion to dismiss federal Wiretap Act claims.

She also rejected Google’s claim that Gmail users consented to the interceptions by agreeing to the company’s Terms of Use agreements.

Case: In re Google Inc. Gmail Litigation, 13-md-2430LHK


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