Google Pleads for Chance to Appeal Gmail Privacy Ruling
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.
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.
Chiming in over the phone, interim lead counsel Sean Rommel of Texas-based Wyly Rommel insisted that Congress did not mean to give Internet companies free rein to define their businesses, though the law was made before email was prevalent.
"Google can't be operating under the ordinary course of business if its self-imposed limitations are being violated or it is committing what we assert is essentially fraud on the community," he said.
Lawyers for Google warned in their motion seeking certification for interlocutory review that Koh's order could have dire consequences for Silicon Valley companies. Responding to the "doomsday scenario," Koh suggested that companies like Google could simply clarify their privacy policies, especially if, as Google contends, users already accept that their emails will be automatically processed.
"What is the harm to the Valley … of a more explicit consent provision?" Koh asked.
But Sullivan said such a simple solution is not on the table.
"This is a case about statutory damages on a massive scale," she said. "We would submit that the policies were already plenty clear."