Google successfully beat back an attempt to unify hundreds of millions of Internet users in joining a lawsuit claiming it illegally scanned private e-mail messages to create targeted advertising and build user profiles.
U.S. District Judge Lucy Koh in San Jose, Calif., ruled on Tuesday that letting the case proceed as a class action—which would have allowed plaintiffs to pool resources and put greater pressure on Google to settle—would prove unwieldy because the claims would be “intensely individualized.”
Legal experts, including Stanford Law School Professor Deborah Hensler, said before the ruling that while the plaintiffs faced difficulty joining forces, the case stood to potentially become the largest group lawsuit ever. The amount at stake could have reached into the trillions of dollars if, as the plaintiffs argued, each person was eligible for damages of $100 a day for violations of federal wiretap law.
Google said it was “glad the court agreed that we have been upfront about Gmail’s automated processing,” though that’s not exactly what Koh concluded.
In a small opening for plaintiffs’ lawyers who might consider taking another chance with a smaller group, Koh amplified a concern she expressed previously that the company’s terms of service and privacy policies about its interceptions weren’t explicit enough to constitute consent from Internet users to let their messages be scanned.
Especially with respect to e-mail users at some educational institutions, Google’s disclosures were “vague at best, and misleading, at worst,” Koh wrote.
“The court found that certain statements in the privacy policies, which stated that Google would collect ‘user communications … to Google’ could actively obscure Google’s interceptions,” she wrote.
The question of whether the proposed class members consented to the alleged interceptions has been “central to this case since it was filed,” Koh wrote. Based on the evidence presented so far, “consent must be litigated on an individual, rather than class-wide basis,” she said.