In March 2014, Google won a legal victory when U.S. District Judge Lucy Koh refused to let several cases accusing Google of violating email users’ privacy rights to proceed as a class action. In the decision, Koh found that the email users were too dissimilar to be grouped together as a class.
The source of plaintiff’s privacy concerns are explicitly stated in Google’s Terms. When a user agrees to use any of Google’s services, the user has to agree to allow Google to “collect information about the services that you use and how you use them.” Google can also use its “automated systems [to] analyze your content (including emails) to provide you personally relevant product features, such as customized search results, tailored advertising, and span and malware detection. This analysis occurs as the content is sent, received, and when it is stored.” Additionally, Google tells the user in its Terms of Service that “[w]hen you upload, submit, store, send or receive content to or through our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content.”
While Judge Koh found that these policies were “vague at best, and misleading, at worst,” she found that the proposed class was not “sufficiently cohesive,” since determining how email users gave consent requires individual inquiries of how the users found out that their email interceptions were taking place. In a hearing prior to Judge Koh’s decision, plaintiffs unsuccessfully argued that the case was “perfectly suited for class treatment” since there was a uniformity in Google’s data extractions from the emails and from its privacy disclosures. Google argued that plaintiffs never showed how a class action model would actually work to include so many email users.
If the case had successfully proceeded as a class action, plaintiffs could have potentially exposed Google to trillions of dollars in damages, created the largest class action to have ever entered federal court, and pressured Google to settle. Instead, plaintiffs now must sue individually or in small groups and cover their own costs during litigation.
Other implications of this decision include how other technology companies will proceed in the future when consumers allege privacy policy violations. Currently, giant technology companies such as Yahoo, LinkedIn, Facebook, and Hulu also face email and data privacy allegations.