## Facts

- Google operated Gmail, an email service in which messages to and from Gmail accounts passed through Google’s servers.
- Plaintiffs included Gmail account holders and non-Gmail users who exchanged emails with Gmail users.
- Plaintiffs alleged Google intentionally intercepted and analyzed email contents through automated scanning, including for targeted advertising and user profiling, beyond basic message transmission.
- Google pointed to its Terms of Service and Privacy Policy, which described various content-handling and information-collection practices, as providing notice and consent.
- The actions were consolidated in a multidistrict litigation in the Northern District of California, and Google moved to dismiss the consolidated complaint under Rule 12(b)(6).

## Issues

1. Whether plaintiffs plausibly alleged an “interception” of electronic communications in violation of the Wiretap Act based on automated scanning of email contents.
2. Whether the Wiretap Act’s “ordinary course of business” exception for service providers barred the claims at the pleading stage when scanning was alleged to support advertising and profiling.
3. Whether consent (express or implied) was established as a matter of law for Gmail users through online terms and policies.
4. Whether consent (express or implied) was established as a matter of law for non-Gmail users who emailed Gmail accounts.
5. Whether and to what extent asserted state wiretap and privacy claims could proceed alongside the federal claims.

## Decision

- The court granted in part and denied in part Google’s motion to dismiss.
- The court held that the Wiretap Act claims plausibly alleged unlawful interception and were not barred on the pleadings by the “ordinary course of business” exception where the alleged purpose was targeted advertising and profiling.
- The court held Google did not establish consent as a matter of law at the pleading stage based on the Terms of Service and Privacy Policy language for Gmail users.
- The court held Google did not establish implied consent as a matter of law for non-Gmail users merely because they emailed a Gmail address.
- The court dismissed some state-law claims (in differing ways depending on the statute and allegations) while allowing other state claims to proceed.

## Legal Principles

- Wiretap Act exceptions are construed narrowly at the pleading stage; a provider’s “ordinary course of business” does not necessarily include interception for advertising or profiling unrelated to message transmission or service functionality.
- Whether a provider’s automated content processing falls within the “ordinary course of business” exception can depend on the alleged purpose and relationship to technical operation (e.g., routing, security, spam/virus filtering versus advertising-driven analysis).
- Consent under the Wiretap Act requires actual, informed consent; generalized or ambiguous online disclosures may be insufficient to establish consent as a matter of law on a motion to dismiss.
- Non-users of a service do not automatically consent to interception by communicating with a user of that service; implied consent cannot be inferred solely from sending an email to the service’s domain absent plausible allegations of actual knowledge of the specific interception practices.
- State wiretap and privacy claims may survive or be dismissed depending on statute-specific elements and alleged applicability, even when federal claims proceed.

## Conclusion

The court allowed core Wiretap Act claims challenging Gmail’s alleged automated scanning of email content for advertising and profiling to proceed, holding that neither the “ordinary course of business” exception nor consent was established as a matter of law on the pleadings, while trimming certain state-law claims.


In re Google Inc. Gmail Litig., 2013 WL 5423918 (N.D. Cal. Sept. 26, 2013)