Yesterday, Google was named in a class action lawsuit by a plaintiff identified only as “A.K., as next friend of minor child J.K.” Filed in the U.S. District Court for the Southern District of Illinois, the lawsuit alleges that Google has violated (and continues to violate) the Electronic Communications Privacy Act of 1986 (the “Act”) and various state privacy laws by its “intentional and willful interception, scanning, and use of” emails sent to and from J.K., a minor child.
The plaintiff claims to represent similarly situated minor children in the state of Illinois and alleges, among other things, that Google’s Gmail product violates federal and state law. Section 2511 of the Act makes punishable anyone who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.”
This is not the first time Google has been sued for Gmail’s use of email scanning to deliver personalized ads. In November 2010, Keith Dunbar filed a lawsuit in the U.S. District Court for the Eastern District of Texas alleging the same violations. The case was transferred in June 2012 to Judge Lucy Koh on the U.S. District Court for the Northern District of California and is still in discovery at the time of writing.
The present lawsuit differs from the original only in that it emphasizes the minority status of the alleged victim, but that is unlikely to make a difference in the outcome, if experts criticizing the original lawsuits are correct about their assessment of why Google is not violating any laws. In essence, experts and Gmail’s privacy policy concur that because no one actually receives the contents of any private emails other than the intended recipient, no laws are violated in the automated scanning of the emails for advertising purposes. Technology law expert Eric Goldman has described the Dunbar case as an “are-you-kidding-me?” case, so that does not bode well for the plaintiff in that case, or in the present one.
That this case involves a minor child (rather than an adult) should not make a difference in the interpretation of the federal statute, but it may affect the availability of state law remedies.
