Google has recently asked a California federal court to dismiss a proposed class action alleging that the company’s practice of scanning Gmail users e-mail for marketing data violates federal and state privacy laws, primarily the Electronic Communications Privacy Act (ECPA).
The crux of Google’s motion is that users of the company’s highly popular Gmail consent to the practice when they sign up for the free email service. While plaintiffs have yet to respond to the motion, they are likely to focus on the fact that the proposed class consists of non-Gmail users who never agreed to Google’s terms of service. In its motion papers, Google addresses this point by noting that the proposed class only seeks injunctive relief, which it argues requires a showing of ongoing ECPA violations without the injunction. Google claims plaintiffs cannot meet the burden since communications where one party consents (i.e., the Gmail user that consented to the scanning practice) is, as a matter of law, not an unlawful interception under ECPA.
Alternatively, Google seeks a stay of the litigation pending the Supreme Court’s decision in Spokeo, Inc. v. Robins, No-13-01339, a case where the highest court will decide whether Congress has the power, by authorizing a private right of action based on a violation of federal statute, to confer standing on a plaintiff to pursue a claim even where no concrete harm has been suffered. Argument in the Spokeo matter is scheduled for November 2, 2015 with a decision expected by no later than June 2016.
The case is Daniel Matera v. Google Inc. case number 5:15-cv-04062 in the United States District Court for the Northern District of California.