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Consumers Oppose Google’s Appeal

23 Oct, 2013 By: Doug McPherson

SANTA CLARA, Calif. – U.S. District Court Judge Lucy Koh is getting an earful from the consumers suing Google about ads in Gmail – they want her to refuse Google’s appeal of her recent ruling.

Last month, Koh ruled Google potentially violates the wiretap law by scanning Gmail messages to serve ads (Response This Week, Oct. 2). Google is seeking to appeal that ruling before the case goes to trial.

Consumers beg to differ: “That Google's 'business model' runs afoul of accepted and rational legal principles does not warrant … review …” they wrote in papers filed last week.

The ruckus started last year when consumers alleged Google violates the Electronic Communications Privacy Act by scanning emails to put ads around them. The act says companies can’t intercept electronic communications without users' consent, but there’s an exception for interceptions “conducted in the ordinary course of business.”

Google has argued that users did consent to the scans and that the scans are an ordinary course of business.

Koh ruled against Google on those issues. Google then asked Koh to send the case to the Ninth Circuit Court of Appeals for its decision. But consumers say Google shouldn’t get a pre-trial appeal because the company hasn't shown the questions raised by the case “are novel or difficult in any meaningful sense.”

MediaPost News reports that Koh's ruling last month shocked industry insiders because contextual ads have been part of Gmail since it began in 2004. Santa Clara University law professor Eric Goldman says in an E-mail to Online Media Daily that the decision “has put the entire E-mail industry in turmoil” and that routine scanning – including spam and virus filtering – could be illegal under Koh's interpretation of the wiretap law.

Goldman added that a quick resolution would help the E-mail industry and Google as it considers if it needs to change or shut down Gmail.

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