Google e-mail scanning settlement appears poised for final approval

13 February 2018 3:51pm

8 February 2018. By Mike Swift

A California federal judge appeared poised to grant final approval Thursday to the settlement of class action litigation alleging Google violated federal and state privacy laws by scanning the messages of non-Gmail subscribers, a decision that would cap eight years of litigation over the privacy of ad-supported e-mail services.

A series of class actions dating back to 2010 had challenged the legality of behind-the-scenes scanning of e-mail services offered by Google, Yahoo and Facebook. The suits alleged that by autonomously combing through the content of billions of electronic messages to target advertising, the Internet platforms were essentially wiretapping millions of their users, in violation of state and federal law.

None of the cases ever got within sniffing distance of a trial on those allegations. But they have required Google, Yahoo and Facebook to agree to more granular privacy limits for person-to-person electronic communications as a result of court-approved settlements, and in the case of Google and Yahoo, to change the technology and limit the scanning to users who had consented to those services.

With Gmail used by more than 1 billion people around the world, the settlement that US District Judge Lucy Koh discussed at a hearing in San Jose, California, Thursday is arguably the most consequential, even though it carried no financial compensation to the class, and took place in a courtroom devoid of spectators, but for a single reporter.

“We have gotten Google, which is one of the largest e-mail providers in the country, to agree to change the way it processes e-mails for consumers who are using this service on a daily basis,” Melissa Ann Gardner, a lawyer for the plaintiffs, told Koh.

No one appeared at the hearing to object to the settlement, and no objections have been filed in the case.

Relating to the e-mail exchanged with Gmail accounts by non-Google subscribers, the settlement’s injunctive relief requires Google to stop scanning the e-mail of non-Google subscribers for advertising purposes for three years. However, Google has already made a public statement that it will no longer scan the content of any e-mail message in order to target ads, instead of relying on data gathered through users’ searches and collected by other Google products to target ads.

“I do think there has been a benefit here,” Koh said of the proposed settlement. “I wish the term of the injunction was longer than three years, however. I guess if Google has made this public representation that it’s not going to be scanning [e-mail] any more, and changes its mind, I guess that could be part of a lawsuit in the future.”

Koh said she still wanted to see some billing records for several paralegals and lawyers who worked on the case for the plaintiffs, to make sure the charges were proper, before she could sign off on a settlement that includes $2.2 million in attorney fees for plaintiff lawyers. Koh said she was concerned that the fees were “a little high” given the work the plaintiffs' side had done.

Specifically, the settlement requires Google to make “architectural changes” to its processing of e-mail apart from scanning for malicious software and Spam, “either eliminating altogether certain scanning processes during e-mail delivery or ensuring that the outputs created from those processes are not used for any Advertising Purposes,” the plaintiffs said in a recent court filing.

Although the settlement allows Google 180 days to make the changes after the settlement is finalized, the Internet giant has already made those changes, the company’s lawyer told Koh.

“As of today, the changes needed to be compliant with the injunction have been finalized,” said Whitty Somvichian, a lawyer representing Google. “Today, no e-mail content is being used for ad-targeting purposes.”

Somvichian said Google needed to limit the injunction to three years “because as a business Google can’t tie its hands” in a way that would prevent it from changing course if technology shifts. But for now, he said the company has no plans to scan Gmail messages to target ads.

Coupled with settlements of litigation against Facebook and Yahoo over the past two years, and an earlier ruling where Koh in 2014 denied approval of class-action status for litigation against Google brought on behalf of Gmail subscribers, final sign-off of the latest settlement involving non-Gmail subscribers would bring litigation to an end at the trial court level.

Facebook, which was sued in late 2013, ultimately agreed to a settlement in 2017. The company agreed to stop reading its users' private messages for targeted ads.

The Facebook settlement has been appealed to the US Court of Appeals for the Ninth Circuit by a group of objectors, who say the settlement’s injunctive relief will not grant class members a significant benefit. Oral argument in that case will likely happen later this year.

Yahoo agreed to a final settlement in 2016 that requires the company, now a unit of Verizon Communications that is called Oath, to rebuild its e-mail infrastructure so it no longer scans messages exchanged with non-Yahoo subscribers in order to target advertising.

The Yahoo settlement confirms “the principle that the consumer owns their personal information, and that it can’t be collected in violation of California law without the consent of the consumer,” Daniel Girard, the lead attorney for the plaintiffs, said when that settlement was finalized.

CCPA Report