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Shades of Gray – Broad Definition of “Consent” Creates Formidable Obstacle to Privacy Class Claims

The Electronic Communications Privacy Act (“ECPA”) is a regular source of attention from plaintiff counsel eager to ground causes of action in the antiquated statute.  As we have written, those efforts in recent years appear to have been gaining some traction.   

Indeed, Judge Lucy Koh in a ruling last September raised the bar on the types of “interceptions” that are permissible without consent under the statute, holding that they need to be “essential” to the service being provided.  That case was brought on behalf of a putative class of Google Gmail users alleging that Google’s operation of the Gmail service violated the ECPA.

Well, it appears that what Judge Koh giveth, she also can taketh away.  In a more recent decision in the same case, issued earlier this month, the judge denied plaintiffs’ motion for class certification, finding that individualized questions of fact surrounding Gmail user consent precluded class disposition. 

The decision is noteworthy in the broad view it takes of what may be admissible evidence of implied consent under the statute.  The court found, in essence, that any source of information available to the putative class members may be relevant to determining whether a particular Gmail user consented to Google’s access to his or her emails.  Because the Gmail service and Google’s practice of scanning user emails to deliver targeted advertising was widely reported and because Google itself advised users of that practice at multiple points and using a variety of formulations, any inquiry into consent would require a “fact-intensive inquiry” particular to each class member that would “overwhelm any common questions.”  The court would need to inquire into whether each member had seen relevant news articles or any of Google’s own notices and determine what he or she had understood as a result.

The court emphasized that consent under the statute cannot be inferred easily, but stated emphatically that the finder of fact must “be allowed to consider a broader set of materials in answering the factual question of whether users impliedly consented to the interceptions.”

In other words, consent is not black or white.  When determining whether implied consent has been given, the court must examine all fifty shades of gray.

Of course, the implications of Judge Koh’s decision for future ECPA claims will depend on whether other courts follow her lead.  If they do, then defendants have been handed an important new tool that, in the right context, may derail class claims. 

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