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Judge: No Appeal for Gmail Privacy Case

5 Feb, 2014 By: Doug McPherson

SAN FRANCISCO – A judge has said Google can’t immediately appeal her ruling that the company potentially violates the wiretap law by scanning Gmail messages.

U.S. District Court Judge Lucy Koh ruled in September that the company’s practice of scanning Gmail messages so it can surround them with contextual ads might violate the Electronic Communications Privacy Act.

The federal wiretap law prohibits companies from intercepting electronic communications without people’s consent. But that law has an exception for interceptions performed in the “ordinary course” of business. Google says users consent to the scans, and that the scans also are performed in the ordinary course of business. Koh ruled against Google on both points.

Koh said last week an immediate appeal would delay the class-action privacy lawsuit, which has been pending since 2011. “The long and tortuous procedural history of this litigation ... demonstrates why further delaying this three-year-old litigation for immediate appellate review is unwarranted,” she wrote.

Insiders say Koh’s decision likely means that her earlier ruling against Google will stand, at least for the near future.

MediaPost News reports that Koh’s September decision marked the first time a judge has said that Google’s 10-year-old Gmail ad program potentially violates the law. Within months of Koh’s ruling, consumers filed similar lawsuits against Yahoo, as well as two new privacy cases against Facebook.

Google needed permission to appeal because the litigation is ongoing. If the case moves to trial and Google loses, the company can appeal without Koh’s approval.

Santa Clara University law professor Eric Goldman told MediaPost that Koh’s September decision casts doubt on the legality of many common practices engaged in by E-mail service providers – like filtering for spam and viruses.

He says the law in this area will remain unsettled until an appellate court rules on the issues. “We desperately need clarity on the legal question,” he wrote in an E-mail. “Judge Koh’s refusal to certify the interlocutory appeal delays us from getting a more definitive legal conclusion for months or years – or, if Google settles, possibly forever.”

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