Judge sides with plaintiff, refuses to dismiss wiretapping suit against Google


Judge Koh published her ruling on Google’s motion to dismiss today.
It’s a 43 page ruling, which I’m still digesting. But the short answer is that Google’s motion was denied almost in total. Google’s motion was granted for two of the claims: that email is confidential as defined by the California Invasion of Privacy Act (CIPA, section 632) and dismissal of a claim under Pennsylvania law.

For the foregoing reasons, the Court hereby GRANTS Google’s Motion to Dismiss with leave to amend with respect to Plaintiffs’ CIPA section 632 claims and Plaintiffs’ Pennsylvania law claim as it relates those who received emails from Gmail users. The Court DENIES Google’s Motion to Dismiss with respect to all other claims. Plaintiffs shall file any amended complaint within 21 days of this order. Plaintiffs may not add new causes of action or parties without a stipulation or order of the Court under Rule 15 of the Federal Rules of Civil Procedure. Failure to cure deficiencies will result in dismissal with prejudice.

The dismissals are a little easier to explain than what was granted. I’ll tackle those now. With the motion to dismiss, I will put together a longer post that discusses what the plaintiffs are alleging and what the judge found.
One of the claim’s by the plaintiff is that under the California invasion of privacy act (CIPA) email should be considered confidential. The act defines confidential communication as

any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

The judge dismisses this claim stating that the “[P]laintiffs have not plausibly alleged that they had an objectively reasonable expectation that their email communications were “confidential” under the terms of section 632.14” In an “overabundance of caution,” however, she grants the Plaintiffs leave to amend their complaint.
The plaintiffs are also making claims under other state laws in addition to California: Pennsylvania, Florida and Maryland. Google argued that Pennsylvania law only protects the sender of the message and since the plaintiffs are representing the receivers of the message, the law does not apply. The judge agrees, but granted the plaintiffs leave to amend the complaint.
All other motions were denied.

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