A class action suit has been filed last month against Google in the Superior Court of California. The class is all California residents who are not Gmail subscribers, and who have sent an email to Gmail subscribers using a non-Gmail email account.
The complaint alleges that Google intentionally intercepted emails sent by individuals who are not Gmail subscribers to Gmail subscribers. Google then reviewed the words, the content and thought processes of these emails.
According to the complaint, while Gmail subscribers consented to their emails being reviewed by Google, including their incoming email, senders of these non-Gmail emails have not given Google their consent to intercept emails sent from their non-Gmail accounts. As this interception is done before the email is delivered to the Gmail subscriber, the complaint alleges that it constitutes wiretapping and eavesdropping in violation of California Invasion of Privacy Act (CIPA), Cal. Penal Code § 630 et seq.
Cal. Penal Code § 630 states the intent for CIPA:
“The Legislature hereby declares that advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society. The Legislature by this chapter intends to protect the right of privacy of the people of this state.”
Wiretapping: Cal. Pen. Code § 631 provides for the liability of "[a]ny person who … willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state." The complaint claims that Google violated § 631.
Eavesdropping: If Google conduct is not wiretapping, the complaint states that Google has violated § 632 of Cal. Pen. Code which makes it illegal to engage in eavesdropping on e-mail conversations.
The Complaints seeks an order requiring Google to cease violating CIPA, and also seeks an award of statutory damages for each member of the class.
The case will be interesting to follow, as a California Court held last April that the Federal Wiretap Act does not completely preempt California’s Invasion of Privacy Act, Cindy Leong v. Carrier IQ Inc et al, Carey Eckert v. Carrier IQ Inc et al, CV 12-01564, United States District Court, C.D. California. In that case, defendant had filed a notice of removal, arguing that "[c]ourts in both the Central and Northern Districts of California have held that the Federal Wiretap Act, as amended by the ECPA in 1986, comprehensively regulates privacy claims concerning electronic communications." The Court was not convinced by the arguments, stating that the California law is more restrictive than the Federal law, and that the Federal law supersedes state law only to the extent that state law offers less protection.