When is the “course of business” considered “ordinary?”
By Bob Scott
Both cases challenge, among other things, Google’s practice of sharing data collected from its customers with advertising partners. In both cases, Google asked the court to dismiss claims that this sharing violates the Wiretap Act, on the basis of the Act’s exception that allows a provider of electronic communications services to intercept customer data “in the ordinary course of business.” Yet the cases reach opposite decisions on the applicability of that exception to very similar claims.
In the same courthouse, as we recently explained in this post, Judge Koh rejected Google’s similar arguments in the Google, Inc. Gmail Litigation. In that case, the court found that to qualify for the “ordinary course of business” exception, an interception must either “facilitate” the transmission of the communication at issue, or be “incidental” to it. The court found that Google’s alleged provision of targeted advertising and creation of user profiles did not “facilitate” the transmission of the emails, that Google’s alleged interception was not “incidental” to that transmission, and thus that the interception and sharing were not in the “ordinary course of [Google’s] business.” Accordingly, Judge Koh let the case proceed. Although the parties have been briefing class certification issues in that case, Google has asked Judge Koh to certify her order so that the 9th Circuit could consider an interlocutory review. Google has now submitted Judge Grewal’s decision to Judge Koh to support its certification request, noting, among other things, that “conflicting decisions on the same issue in the same District are ideal candidates for interlocutory review.”
In each of these decisions, the judges took pains to note the differences in their respective approaches, but suggested the outcomes were ultimately consistent. While the facts and claims in the two cases are not the same, to be sure, the decisions are simply not consistent in their application of the Wiretap Act’s “ordinary course of business” exception. In fact, the two opinions each cite two separate decisions of other courts (Hall v. Earthlink Network, Inc. and Kirch v Embarq Management Co.) as support for their respective narrow or expansive interpretations of the “‘ordinary course of business’” exception. Consequently, something does not compute here.
If Judge Koh and then the 9th Circuit grant Google’s request for an interlocutory appeal of the decision in the Google, Inc. Gmail Litigation that narrowly interprets the “ordinary course of business” exception, there eventually could be a uniform standard in the 9th Circuit. Until then, judges appear willing to make their own decisions based on the language of the statute and their interpretations of related precedent.