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Google hit with $1bn US class action suit over unlawful interception

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By Simon Davies

The US legal press is reporting (subscription required) a potentially important class action law suit that has been filed against Google over alleged email interception.

The suit claims that Google unlawfully intercepts communications via its Gmail-based Google Apps for Education program

The one billion dollar suit, filed last week in California, claims that Google unlawfully intercepts communications via its Gmail-based Google Apps for Education program, which provides student, faculty and alumni email addresses to educational institutions.

Plaintiffs Robert Fread and Rafael Carrillo allege the advertising giant is violating the Electronic Communications Privacy Act by routinely harvesting content from emails sent and received via educational addresses, even though the Apps EDU accounts are marketed to colleges as being exempt from content-based targeted advertising.

It is estimated that the potential class could be more than 100,000 Apps EDU users. With a potential statutory penalty of $10,000 per plaintiff, the company could be exposed to more than $1 billion, according to the suit.

“Using multiple devices, Google intercepts the content and meaning of all plaintiffs’ and class members’ sent and received electronic communications while those emails are in transit to the recipient,” the plaintiffs said. “Google then uses the information and content obtained from the unlawful interception for multiple undisclosed purposes and for profit.”

The case is likely to interest privacy regulators in Europe who have already taken action to enforce privacy protections in Google Apps. The fusion of GMail with educational services provided by Google raises a particularly sensitive arena for the company and for regulators.

Google uses the information and content obtained from the unlawful interception for multiple undisclosed purposes and for profit.

Fread and Carillo, respectively students at the University of Hawaii and University of the Pacific, contend that Google uses Apps EDU as the “quintessential Trojan Horse,” pushing schools to switch to its platform on the promise that message content will be exempted from the company’s advertising systems and then unlawfully harvesting that data.

In addition – on a point that may be of some interest to the US Federal Trade Commission –  the claim asserts that Google fraudulently circumvents the Federal Education Privacy Rights Act by falsely designating itself as a “school official” in those contracts.

Google’s harvesting practices are not in line with the industry standard, and claim that neither Yahoo! Inc. nor Microsoft Inc.’s Outlook platforms intercept or use noncommercial email content.

The company purportedly conducts its business in this way despite the fact that there are no disclosures or information in the Apps EDU terms of service sufficient to constitute an acknowledgement of consent under the ECPA, the plaintiffs say.

In doing so, Google secures a financial windfall while avoiding possibly costly traffic acquisition costs, according to the complaint, which notes that Google uses a uniform Apps EDU contract at thousands of educational institutions throughout the U.S.

“This data is valuable to Google,” the suit explains. “Google openly claims to investors that there is monetary value in such data, and regularly pays others for what it refers to as ‘traffic acquisition costs.’”

The plaintiffs add that Google’s harvesting practices are not in line with the industry standard, and claim that neither Yahoo! Inc. nor Microsoft Inc.’s Outlook platforms intercept or use noncommercial email content.

Both plaintiffs allege they were forced by their colleges to migrate email communications to the Google platform without their consent. While Google did not display targeted ads on those accounts, the plaintiffs say they sent and received emails containing sensitive financial and educational information that were subject to Google’s content extraction process.