Google Pleads for Chance to Appeal Gmail Privacy Ruling

, The Litigation Daily

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Julia Love writes for The Recorder, an American Lawyer affiliate.

SAN JOSE — Lawyers for Google are urging U.S. District Judge Lucy Koh to allow the company to appeal legal questions at the center of email privacy suits that are closing in on the company.

In a controversial ruling last month, Koh struck down Google's defenses to claims that it violated the federal Electronic Communications Privacy Act and state privacy laws by scanning Gmail messages to help sell ads. At a hearing on Tuesday, Google lawyer Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan pressed Koh to certify her order for interlocutory review, arguing that the judge had tackled novel legal questions which could reshape technology companies' interactions with users.

"It is important not just for getting this case right but for getting other cases right that are going to determine the course of business in the Valley," said Sullivan. She pointed to a similar suit filed against Yahoo Inc. the week after Koh's order.

Koh questioned whether granting Google's request for an immediate appeal to the U.S. Court of Appeals for the Ninth Circuit would advance or delay the litigation. The case, Koh noted, is proceeding at a brisk pace, and she is set to hear the plaintiffs' motion for class certification in January.

Koh referenced the Ninth Circuit's review this year of an interlocutory appeal Google filed in another privacy fight. In that case, Google asked the appeals court to reconsider a 2011 ruling from U.S. District Judge James Ware over data collected during its Street View mapping project. Earlier this year, the Ninth Circuit ruled against Google and endorsed the district judge's findings that the company can be sued under the federal Wiretap Act for sniffing out data from home Wi-Fi networks.

"More than two and a half years later, we're still no closer to the termination of the litigation," Koh said. "In fact, I think we might be further away."

Sullivan told Koh that speed should not be the only consideration. "The point here ... is to try to get the guiding law right in advance," she said.

Koh found in September that scanning messages to help sell ads does not fall under an "ordinary course of business" exemption for electronic communications service providers under federal and state wiretap laws. She also rejected the company's argument that users had agreed to the practice, finding that Google's terms of service and privacy policy were too vague to add up to consent.

Insisting that no other courts have ruled contrary to Koh's conclusions, plaintiffs lawyer Nancy Tompkins of Kerr & Wagstaffe argued that the law is already clear enough. To the extent that there are questions as to what the 1986 Electronic Communications Privacy Act means for email providers like Google, the company chose to wade into uncertain terrain, she added.

"We believe that Google did the math and took the risk and decided that it wasn't willing to risk giving up the revenue it might give up if it told its customers what it was planning on doing," she said.

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