Google Inc. is making a counter against claims that it illegally scanned private e-mail messages, argues it shouldn’t have to face a single lawsuit that lumps together hundreds of millions of Internet users.
The world’s biggest search-engine firm contends a nationwide grouping of people who received or sent messages through its Gmail service over five years would “amalgamate an unprecedented collection of individuals,” according to a filing in federal court in San Jose, California If, as the plaintiffs argue, each person is eligible for damages accruing at $100 a day for violations of the Electronic Communications Privacy Act, the expense at stake could achieve into the trillions of dollars.
U.S. District Judge Lucy Koh, who is hearing arguments today over whether to certify the case as a class action, has e-mail privacy complaints designated to her that were filed last year versus LinkedIn Corp. and Yahoo! Inc., which also have hundreds of millions of users. In each case, class-action status would grant plaintiffs to pool resources and put a bigger amount of pressure on defendants to settle.
Minor Accounts
Koh started the hearing by asking lawyers for both sides questions to know if the class is ascertainable and whether there’s a way to accurately determine how many minors have Google accounts in the U.S.
Similarly giant cases have been brought versus Facebook Inc. and Hulu as Web users challenge how firms monetize their data for the world wide web advertising market that produced more than $40 billion in the U.S. last year. Google, meanwhile, encounters another privacy case in San Francisco federal court brought on behalf of everyone in the U.S. whose wireless Internet connections were intercepted by firm vehicles gathering data for the Street View mapping service.
The lawyers suing Google over email scanning face “a very steep hurdle” to proceed with a group case and the judge will need to do a “rigorous analysis” to know whether it’s appropriate, Stanford Law School Professor Deborah Hensler said, adding that only 10 percent to 20 percent of all cases filed as class-actions are authorized to go forward.
‘Imperfect Set’
Google called it “a Herculean task beyond the resources of the court and parties,” according to a court filing.
“It is an imperfect set of data,” Google lawyer Michael Rhodes said today at the hearing. “The record today is that on these core issues of ascertainability, they’ve never come forward with a model that will work,” and be free of too many ‘false positives,’ he said.
The case was brought in 2013 by users of Gmail and other email services from states including Florida, Maryland, Texas and Pennsylvania claiming Google intercepted, read and mined the content of email messages for targeted advertising and to build user profiles.
Koh in September rejected Mountain View, California-based Google’s bid to dismiss the case. In a rare early victory for plaintiffs in an online privacy lawsuit, the judge rejected Google’s argument that Gmail users acknowledged when they accepted subscription service terms and privacy policies to let their messages be scanned.
‘Common Issues’
Federal policies demands that the cluster be “clearly definable and that common issues predominate over individual differences among class members,” Hensler, the Stanford professor, said in an email.
“Arguably in a huge class there are more likely to be differences among class members that would make certification difficult,” she wrote. “In any event, certification is never a sure thing.”
In 2011, the U.S. Supreme Court turned down class certification for a lawsuit charges on behalf of more than 1.5 million female workers declaring discrimination in promotions and salary at Wal-Mart Stores Inc., the world’s biggest retailer. The court told the women they didn’t have enough in common to file a case against the firm as a monolithic group.
‘Perfectly Suited’
The plaintiffs now squabble the case is “perfectly suited for class treatment” because everyone hit by the email scanning has many similarities, from the “uniform nature” of Google’s extraction of information in emails to the firm’s “uniform disclosures” about its privacy actions.
Firms often look to avoid class actions, instead trying to oppose to plaintiffs one-by-one or in small clusters, forcing them to use their own monetary resources to litigate.
Google contends that if the email case acquires cluster status, it would “indiscriminately amass together virtually everyone in the United States with a non-Gmail email account, along with huge clusters of the over 400 million individuals who use Google Apps and Gmail,” according to a court filing.
The similar things needed for class-action status is nowhere to be found because the “many billions” of emails at issue raise “an immense array of individualized evidence” over whether the senders and recipients were aware of the automatic scanning, Google said.
Google and the lead lawyer suing the company over the scanning, Sean Rommel, both declined to comment in advance of today’s hearing.
Possible Damages
Neither the plaintiffs or Google have publicly disclosed total estimates on the size of the class or potential damages.
Chris Hoofnagle, a law professor at the University of California at Berkeley, said that while the Google case is “very important,” courts “almost never award the full amount of potential statutory damages in privacy cases.”
“Defendants in these cases often have mitigating circumstances that reduce damage awards, and they argue that extra-large awards violate their due process,” he said in an email.
Ruling of Wal-Mart
Google’s 31-page argument to Koh in the email case cited the high court’s Wal-Mart ruling three times.
If the Google case is given class status, “it could well be” the largest ever, said Rick Wiebe, a San Francisco lawyer who does class-action and privacy cases. While other group lawsuits -- product injury, medical instruments or drug, and shareholder cases -- have been prosecuted on behalf of tens of millions of plaintiffs, Google may be the first including hundreds of millions, said Wiebe, who’s one of the lawyers in a civil rights lawsuit challenging the Obama administration over National Security Agency surveillance of telephone calls.
Plaintiffs’ lawyers are presenting the Google case as more viable by organizing “sub-classes,” arguing that any differences in the types of injury “clump themselves together in a manageable fashion,” Wiebe said. Arguing for statutory damages may also streamline the case, Wiebe said. By claiming damages “that Congress has said everyone should get for a violation, you don’t need individual proof of an injury,” he said.
