March 22, 2023

Google facing new privacy suit over email scanning

Google campus courtesy photo

Google campus
courtesy photo

By Ross Todd, From The Recorder

SAN FRANCISCO — Google Inc. has brought on lawyers from Cooley to defend the company from claims that it violated a federal privacy statute by intercepting and scanning emails sent by students using its Apps for Education service.

The suit puts Cooley in the familiar position of defending Google’s scanning of emails to serve targeted ads. The firm helped defeat a bid for class certification in 2014 in In re Google Gmail Litigation, 13-2430, a prior suit that accused the company’s ad-matching program of violating various federal and state privacy laws.

Lawyers at Gallo LLP sued Google last month on behalf of four former UC-Berkeley students. According to the complaint, the students used a version of the company’s email service that it offers for free to universities. Although Google said that users’ messages wouldn’t be scanned for advertising purposes, they were, the suit alleges.

“Google’s interception, reading, and interpreting of educational users’ email for advertising purposes was not a necessary or instrumental component of Google’s operation of a functioning email system, nor was it an incidental effect of providing this service,” wrote Gallo’s Ray Gallo in the complaint. The suit claims that Google violated the Electronic Communications Privacy Act which carries statutory damages of $10,000 for each plaintiff or $100 for each day depending on which is higher.

The prior round of Gmail privacy suits survived a defense motion to dismiss before U.S. District Judge Lucy Koh in 2013 who ruled that Google’s practice did not fall under an exemption in federal anti-surveillance laws for activities conducted by communications service providers in the “ordinary course of business.”

However, plaintiffs’ claims fizzled after the judge denied class certification the following year, finding that she would have to determine how much each Gmail user knew about the company’s practices to determine whether they consented to the scanning. Koh also declined to certify a class of Google Apps for Education email users since disclosure at schools ranged from specific to vague, making the consent issue too murky for class treatment.

Although the new complaint isn’t styled as a class action, Gallo identifies 10 schools in addition to UC-Berkeley that the firm says made explicit assurances that Google would not scan users’ emails for advertising purposes. In an email message Friday, Gallo said that he anticipates bringing claims on behalf at other individuals at other schools, but that he likely won’t seek class certification.

Cooley’s Michael Rhodes declined to comment. A spokesperson for Google didn’t immediately respond to an email message.

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