Update: Google Not Going Down Without a Fight

By John D. Seiver and Christin McMeley

Google is seeking further review in two cases we wrote about last week on alleged Wiretap Act violations.  In the Gmail case, where Google was charged with improperly reviewing subscribers’ emails,  Google asked Judge Koh to certify her decision for interlocutory appeal to the Ninth Circuit.  But even if Judge Koh grants Google’s motion, the Ninth Circuit still has to agree to take the appeal.  And given the Ninth Circuit’s Decision in Google’s Street View case, where Google was found to have improperly “intercepted” unencrypted Wi-Fi signals, it is not clear that Google will succeed in gaining interlocutory review, except that….

Google may feel encouraged because the Ninth Circuit on Wednesday ordered the plaintiffs to respond to Google’s petition for panel and en banc rehearing in the Street View case, a precondition to any grant of rehearing. We will update on plaintiffs’ filing and the court’s action on Google’s petition.

While federal courts in California seem more inclined to let plaintiffs move forward with Wiretap Act claims, a U.S. District Court Judge in Delaware dismissed claims that Google violated computer users’ rights by placing “cookies” into user’s Web browsers to facilitate the placement of advertising, and disregarding Apple’s Safari browser’s default blocker.  The court held that a URL is merely “a location identifier” and therefore, the cookies do not intercept “contents” as required for a Wiretap Act violation, nor does it “demonstrate that Google intercepted any ‘contents or meaning’” under California’s Invasion of Privacy Act.”  The court also dismissed claims that the placement of such cookies violated the Stored Communications Act, stating that “[d]espite the temptation, the court declines to try to fit a square peg (modern technology) into the proverbial round hole (the intent of Congress as reflected in the statutory language of the SCA).”  Even though the court found that, “while plaintiffs have offered some evidence that the online personal information at issue has some modicum of identifiable value to an individual plaintiff, plaintiffs have not sufficiently alleged that the ability to monetize their PII has been diminished or lost by virtue of Google's previous collection of it,” it went on to resolve and dismiss the substantive issues because when plaintiffs allege statutory violations with the possibility of collecting statutory damages, “the absence of any actual injury, may in some circumstances create standing.”

It is reasonable to expect that unless and until there are definitive appellate or SCOTUS rulings on standing or that the “round hole” of ECPA cannot easily accommodate the “square peg” of modern technology, we will continue to see the class action privacy bar testing the waters.

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