What’s in Your Privacy Policy?—Google’s Insufficient to Dismiss Class Action Claims

by Davis Wright Tremaine LLP

Last week, a California federal judge allowed a class action to move forward challenging Google’s scanning of emails and targeted email advertising, rejecting Google’s claims of express and implied consent in its Terms of Service and privacy policy disclosures, and adopting a broad construction of wiretapping injury that will likely be cited by plaintiffs in future cases against online and Internet service providers that create user profiles or deliver targeted ads. Judge Lucy Koh’s 43-page opinion does not impose liability on Google for its actions because it is only a denial of parts of Google’s motion to dismiss. However, the opinion governs further proceedings in the case and may well impact how other cases are litigated. On that score, the opinion finds language in Google’s privacy policies and Terms of Service inadequate, and stretches the reach of older laws to new technologies.

In its motion to dismiss, Google argued that there was no interception because there was no “device”—the scanning of the emails was done as part of its normal course of business. Judge Koh compared Google to NebuAd (an oft-sued and now defunct purveyor of targeted ads), and applied a narrow reading to the “ordinary course of business” exception. She found that to qualify for that exception, an interception must either “facilitate” the transmission of the communication at issue or be “incidental” to the transmission of such communication. In this instance, the court found that Google’s alleged provision of targeted advertising and creation of user profiles did not “facilitate” the transmission of the emails and that Google’s alleged interception was not “incidental” because it used 2 separate systems—one for facilitating the transmission of emails and another for creating user profiles and targeted ads. The court also found that plaintiffs sufficiently alleged that Google violated its own service agreements and internal polices with regard to privacy, which precluded the application of the ordinary course of business exception.

Judge Koh also rejected Google’s claim that users and non-users consented to Google’s reading of email for creating user profiles and for providing targeted advertising. She ruled that Google’s Terms of Service and privacy policies were either vague or misleading, and “those policies did not explicitly notify Plaintiffs that Google would intercept users’ emails for the purposes of creating user profiles or providing targeted advertising,” holding that Google did not clearly explain that it would review email content, only that it could do so. Google’s Terms of Service fared no better. The TOS stated that “advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.” The court found this notice defective in demonstrating consent because (1) “it demonstrates only that Google has the capacity to intercept communications, not that it will;” (2) it implies that Google would only access information stored on or queried through the services, not information in transit via email; and (3) it only disclosed advertising, not the creation of user profiles.

Similarly, the court found that Google’s privacy policies did not demonstrate explicit consent, stating that “a reasonable Gmail user who read the Privacy Policies would not have necessarily understood that her emails were being intercepted to create user profiles or to provide targeted advertisements.” The Court also rejected Google’s claim of implied consent for non-Gmail users who sent and received emails to Gmail users because to rule otherwise “would eviscerate the rule against interception.” Moreover, because many of the state law claims mirrored those in the federal Wiretap Act, Google’s motion to dismiss was largely denied for the same reasons.

Judge Koh also rejected Google’s defense that Plaintiffs did not suffer an “injury” required by Article III to confer standing. The court adopted the view that if a statute establishes privacy rights, the invasion of those rights creates standing. Because both the Wiretap Act and the California state law equivalent create private rights of action and authorize awards of statutory damages, she found that allegations of a Wiretap Act violation alone, without showing actual damages, is sufficient to establish standing, thus adding to the split among courts on this issue. The court also rejected Google’s argument that the California state wiretap law did not apply to email, but was limited to interception of content on telephone and telegraphic wires, lines or cables. Judge Koh followed the California courts’ approach to “updating obsolete statutes in light of emerging technologies.”

While this ruling is not final, the language of Judge Koh’s opinion may be cited by plaintiffs in other proceedings against online and Internet service providers. Companies should review their privacy policies to ensure they clearly articulate their data collection, use and marketing practices.

Written by:

Davis Wright Tremaine LLP

Davis Wright Tremaine LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.