Judge Refuses To Send Gmail Privacy Case To Appellate Court, Anti-Google ... - MediaPost Communications

A judge has denied Google permission to immediately appeal her ruling that the company potentially violates the wiretap law by scanning Gmail messages.

U.S. District Court Judge Lucy Koh said on Tuesday that an immediate appeal would delay the class-action privacy lawsuit, which has been pending since 2011. "The long and tortuous procedural history of this litigation ... demonstrates why further delaying this 3-year-old litigation for immediate appellate review is unwarranted," she wrote in an order rejecting Google's request to send the matter to the 9th Circuit Court of Appeals.

Koh's decision likely means that her earlier ruling against Google will stand, at least for the near future. Koh ruled in September that the company's practice of scanning Gmail messages in order to surround them with contextual ads might violate the Electronic Communications Privacy Act.

That decision marked the first time a judge has said that Google's 10-year-old Gmail ad program potentially violates the law. Within months of Koh's ruling, consumers filed similar lawsuits against Yahoo, as well as two new privacy cases against Facebook.

Google wanted to quickly appeal Koh's ruling, but needed permission to do so because the litigation is ongoing. If the case proceeds to trial, and Google loses, the company can appeal without Koh's approval.

The federal wiretap law prohibits companies from intercepting electronic communications without people's consent. But that law has an exception for interceptions performed in the "ordinary course" of business. Google takes the position that users consent to the scans, and that the scans also are performed in the ordinary course of business. Koh ruled against Google on both points.

Koh's September decision casts doubt on the legality of many common practices engaged in by email service providers -- like filtering for spam and viruses -- according to Santa Clara University law professor Eric Goldman.

He says that the law in this area will remain unsettled until an appellate court rules on the issues. "We desperately need clarity on the legal question," he says in an email to Online Media Daily. "Judge Koh's refusal to certify the interlocutory appeal delays us from getting a more definitive legal conclusion for months or years (or, if Google settles, possibly forever)."

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