Yahoo Sued for Eavesdropping on E-Mail Communications With Non-Yahoo Users

Oct. 3 –Yahoo! Inc. is violating California privacy and federal electronic communications laws by scanning nonusers’ e-mails in order to target advertisements, a complaint filed Oct. 2 in the U.S. District Court for the Northern District of California alleged (Kevranian v. Yahoo! Inc., N.D. Cal., No. 5:13-cv-04547-HRL, complaint filed 10/2/13).

Plaintiffs who are not Yahoo users seek class-action status for California and national users who sent messages to a Yahoo subscriber and whose communications were intercepted, read and scanned for keywords or patterns that can be used in profiling, data collection and uses other than service or protecting the company’s rights and property.

“The reading, attempting to read, learning the contents or meaning of, eavesdropping upon, and recording of Plaintiffs’ and Class Members’ communications to Yahoo! Mail users that is caused by Yahoo!’s continual and pervasive use of such devices and techniques seriously threatens the free exercise of personal liberties, and is of the type of behavior that the U.S. Congress and the California Legislature has declared should not be tolerated in a free and civilized society,” the complaint said.

The plaintiffs claimed Yahoo’s practice violates the California Invasion of Privacy Act, Cal. Penal Code §§ 630-638, which prohibits anyone from intentionally engaging, without the consent of all parties, in wiretapping of e-mail communications. The plaintiffs also alleged violations of the Electronic Communications Privacy Act, 18 U.S.C § 2510, which amended the federal Wiretap Act, for intentional interception of electronic communications.

A Yahoo representative in an Oct. 3 statement to Bloomberg BNA said, “We don’t comment on ongoing litigation.”

Similar Gmail Lawsuit Proceeding

The lawsuit was filed a week after the same court cleared a consolidated multidistrict lawsuit focused on Google Inc.’s alleged scanning of the contents of incoming and outgoing Gmail messages to display contextual advertising and create user profiles (In re Google Inc. Gmail Litig., No. 5:13-md-02430-LHK (N.D. Cal. Sept. 26, 2013)) .

The court held Google’s scanning does not fall within the Wiretap Act’s “ordinary course of business” exception, at 18 U.S.C. § 2510(5)(a). Nor does Google need to scan e-mails in order for the service to operate, and the scanning may violate Google’s privacy policies, the court concluded.

It rejected Google’s consent-based challenge to the Wiretap Act claim as Google’s terms of use did not adequately disclose it would intercept e-mail contents to create user profiles.

Gmail Ruling as a Guide

The court’s “ruling buttresses the position that wiretapping applies to email communication just as much as telephone communications,” Ara Jabagchourian, a principal with Cotchett, Pitre & McCarthy LLP in Burlingame, Calif., and the plaintiffs’ attorney in the Yahoo case, told Bloomberg BNA Oct. 3. “Further, the ruling reaffirms the law that third parties cannot intercept communications between other parties without all parties consenting to this invasion.”

Because one party may consent to some terms of service “that vaguely indicate that the provider will read your emails does not mean that the public should just consent to this wholesale attempt from these data gatherers that the laws promulgated to protect privacy rights are meaningless,” Jabagchourian said. “I do not believe that most people know that their emails are being scanned or condone of it.”

University of San Francisco School of Law Professor Susan Freiwald told Bloomberg BNA Oct. 3 that she is “not at surprised that there would be follow-on lawsuits in the wake of last week’s Gmail decision.”

The court found Google’s disclosures “did not explain clearly enough what Google was doing to put users ‘on notice’ that their emails were being ‘intercepted to create user profiles,’ ’’ Freiwald said.

“As for the case against Yahoo, I think its progress in court will depend on the nature and purpose of the scanning it describes and how clearly and specifically Yahoo disclosed that scanning to users in order to obtain their explicit consent,” she said.

Freiwald said it is not necessary to establish that users have reasonable expectations of privacy in their e-mail under the federal wiretapping law so long as the statutory definitions are met.

Change of Terms

Sunnyvale, Calif.-based Yahoo is the world’s third-largest Web-based e-mail service with more than 300 million users. The company last June discounted its support of the “Classic” e-mail interface so users were required to switch over to a new interface and accept its various terms of service and privacy policy, the complaint said.

In its new policy, Yahoo said it scans and analyzes communications content for protection and to provide “personally relevant product features,” the complaint said. Its frequently asked questions stated the company’s “automated systems scan and analyze all incoming and outgoing communications content sent and received from your account.”

“As stated in its 2011 Terms of Service, Yahoo! explained the difference between ‘publicly accessible’ areas hosted on its website–such as Yahoo! Message Boards and Flickr–and private areas–such as Yahoo! Mail or Yahoo! Messenger–that could be used for ‘private communications,’ ” the complaint said. “However, Yahoo!’s own business policies and practices did not treat these ‘private communications’ as private for the purposes of increasing corporate revenues generated by online advertising, the creation user profiles, and other such uses.”

In addition to Jabagchourian, Brian M. Schnarr, of Cotchett, Pitre& McCarthy LLP, Burlingame, Calif., represented the plaintiffs.