A district court in California joined a growing number of other courts in finding that Google may not hide behind the “ordinary course of business” exception found in the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 2510, et seq., to scan its users’ emails with impunity.
According to the plaintiffs in In re: Google Inc. Gmail Litigation, No. 13-md-02430, since approximately 2008, Google has intercepted and read the content of all emails that were sent or received by users of its free email service, Gmail, for the purposes of sending an advertisement relevant to that email communication to the recipient, sender or both.
The plaintiffs further alleged that the process by which Google intercepted and read its users’ emails occurred and was conducted separate from Google’s other email processes, including spam and virus filtering.
The plaintiffs claimed that Google was in violation of the ECPA, which generally prohibits the interception of “wire, oral, or electronic communications” and provides a private right of action against any person who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.” 18 U.S.C. § 2511(1)(a).
The law defines “intercept” as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” Id. at § 2510(4).
Google argued that there was no interception because, under the “ordinary course of business” exception, “any telephone or telegraph instrument, equipment or facility, or any component thereof . . . being used by a provider of wire or electronic communication service in the ordinary course of its business” falls outside of the definition. 18 U.S.C. § 2510(5)(a)(ii).
However, the Court rejected Google’s reasoning, finding that the ECPA exception should not be interpreted so broadly as to permit the company to do anything it wished with its users’ data.
The exception should be interpreted narrowly. The Court specifically found that the exception is designed only to protect electronic communication service providers against a finding of liability under the law where the interception facilitated or was incidental to provision of the electronic communication service at issue.
Because the plaintiffs had plausibly alleged that Google intercepts its users’ emails for the purpose of creating user profiles and delivering targeted advertising, processes which are not instrumental to Google’s ability to transmit emails, the Court denied Google’s motion to dismiss plaintiffs’ claims.
The full text of U.S. District Judge Lucy H. Koh is available here.
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