"Each Plaintiff received disclosures from his or her Educational Institution that indicated his or her (Apps for Education) emails were private,"
I'm missing the part where Google told the students they weren't scanning the emails; wouldn't this just be a failure on the school's part? If they removed all advertising from the service in 2014, I can only imagine that the licensing agreement before that point included some clause about advertising and email content.
You are best off reading the actual Complaint to determine who the parties are and the specific allegations against Google...that said the article included this single allegation against Google from the Complaint:
>"Google's lies," according to the lawsuit, included a statement on a privacy page for Apps for Education, which was on the web from at least June 2011 to September 2012, and said the apps were "completely ad-free -- which means your school's content is not processed by Google's advertising systems."
That statement from Google would only be a lie if the students were getting ads. The article says the complaint is that "the firm harvested their data for commercial gain without their consent". I could not determine from the article exactly what harvesting was done or what commercial gain derived from that.
Google has maintained that the email scanning for targeted advertising is not a privacy issue in that it is automated and there are no details leaked outside the system. If it turned out that the scanning was done and no actions resulted from that then the whole thing would become philosophical.
"Google's lies," according to the lawsuit, included a statement on a privacy page for Apps for Education, which was on the web from at least June 2011 to September 2012, and said the apps were "completely ad-free -- which means your school's content is not processed by Google's advertising systems."
"Please don't insinuate that someone hasn't read an article. 'Did you even read the article? It mentions that' can be shortened to 'The article mentions that.'"
There are general principles in the law that would say in this specific case, Google is making money off this arrangement, this arrangement is based on making money off of scanning emails, people wronged by this arrangement have a right to recompense, so follow the money, that's where the recompense should come from.
Companies cannot dodge liability for their actions by hiding behind third parties. Otherwise, the UPS or Fedex labelled truck that just ran over your kid would, every time, turn out to be a flat broke independent contractor Uber driver that all the other companies in the chain would point the finger at.
I think this a flawed analysis of the economics of the situation. The entity benefiting here is the school, by avoiding having to pay for email hosting. That Google gets paid (in cash or otherwise) for providing that service is not surprising, and not at all analogous to hiring an independent contractor.
IANAL, but it seems to me the important consideration here is who has duty of care regarding the students, and it's seems clear that it's the school.
Now, if Google lied regarding the scanning, the complaint may be valid, but that's a different argument.
What I described is actually how it works as I was taught in a university law course. Your "economic analysis" sounds to me like logical speculation on your part, which while it may be a superficially valid way to parse the situation, and under historical common law could have been how courts determined the outcome, is from what I learned simply not how courts actually handle it. "Saved costs" is not a category from which a judgement could be obtained, while "profits" is, and "profits" is an actual motivation to set up an unclean liability shifting arrangement.
You will see this case continue to move forward through the courts which it would not--plaintiff's lawyers would not even pursue it--if you were correct.
and as a final point, I was not drawing an analogy to independent contract workers, I was using one as an example of an arrangement a court would see through; remove that term and my argument still applies.
The article doesn't claim that Google sold students' data. As is par for the course with Google, any data that Google processes is used to build up a profile of the user and then used to target advertising towards that user. The data itself is never sold, and the advertiser has no knowledge of who their advertising was delivered to nor does the advertiser know, if the person clicks through on the ad, why the person was served up that ad. It may have been because of the contents of their email; it may be because of prior searches; it may be because at one point they visited a website which was related; or it could be because Google couldn't figure out what was best and just served up some random ad.
The data belongs to the students and there was an agreement not to mine it; the complaint is that this agreement was ignored and the data was mined.
That kind of thing carries regulatory fines in EU. There may be a bit of culture clash happening in this thread between Europeans ("this is my data and you need my permission to use it") and SV ("this data is gathered by the company and it's theirs to do with what they wish")
> However, the suits by the students, including 68 from Berkeley and 243 from UC Santa Cruz, have been thrown into uncertainty by a federal judge's suggestion that each student in the largest claim should file separately so the court can collect 710 individual $400 filing fees.
> "Our clerk's office is really unhappy you are circumventing our filing fees by adding 710 cases under one case number," U.S. District Court Judge Lucy Koh told the students' lawyer, Ray Gallo, according to a court transcript.
> Gallo, who is representing the students in both cases, said he expected Google to file a request to separate the 710 claims individually.
> "This is a mass case and the question is, 'Can these people who all have essentially the same claim bring it together so that a lawyer like me will agree to do it?" he said. "If these cases have to be filed individually, no lawyer would take it."
In one hand the lawyer is right, filling what amounts to the same complaint under 710 different cases is burdensome and adds unnecessary complexity in the process.
On the other hand it signals a very bad start by the part of the complainants legal team. Not following judicial (and clerical) procedure to the letter is a very easy way to have the case lost on a technicality.
Being a layman in this area my question is: what prevents them from filling a proper class action?
Either that or what prevents them from filling the case with a single complainant and, in case of success, using the precedent to get an easier time for the rest 709?
> Being a layman in this area my question is: what prevents them from filling a proper class action?
Litigating a class action involves not just litigating the merits, but litigating the propriety of filing as a class action. E.g. is the class composed of a definite and ascertainable group of people? Are the facts common to all class members? Settling a class action also requires court approval, whereas setting a lawsuit in which all plaintiffs are joined does not. This adds a whole bunch of motions practice.
In a case like this the plaintiffs would likely win on class certification, since the same alleged harm happened to an easy-to-define group of people. But it's a bunch of extra work for the lawyer, who is probably proceeding on contingency.
> But it's a bunch of extra work for the lawyer, who is probably proceeding on contingency.
Aren't most class actions done on contingency? Also, if they are suing Google, it's hard to believe the extra work of filing a class action would be a significant expense for the plaintiff; there is discovery (and all the skilled labor involved), experts, travel, etc. And it's billable time, which should increase the fees the court approves.
Finally, isn't it usually a race by attorneys to get their class certified first, so they are the lead attorney (and get more of the fees)?
Both things you say are true, but here you've got 700 plaintiffs. How much damages did they have? $500 each? Then you're talking about a fee award of $100k, which isn't a lot to battle class-certification issues with Google.
I'm not sure if this happened at any other universities. If so, a class action would make more sense.
I know someone who works in a U.S. federal court and is familiar with these kinds of issues. According to them, the judge's statement is very unusual:
Filing fees have no bearing on the case's designation as a mass torte of some kind, and to do otherwise would be unethical (of course). Each district court's budget is determined by a nationwide court office based on workload, not on revenue; this isn't a business. However, each court does keep the fees it collects.
Also, if the clerk's office is unhappy, it would address that directly to the attorneys in more or less subtle ways; in fact, the clerk's office could insist on separate cases being filed. A federal court's clerk's office is hardly helpless; you don't want to mess with them if you're an attorney.
Finally, they said this seems like a straightforward mass torte. But my contact is puzzled about why the plaintiffs have not already filed this case as a class action (which is one kind of mass torte).
So, wait, if you have to assume each victim is a separate case with $400 of fees just to file, isn't that just begging bad people to commit whatever torts don't exceed $400/person?
> if you have to assume each victim is a separate case with $400 of fees just to file, isn't that just begging bad people to commit whatever torts don't exceed $400/person?
It's much worse than that. It's not worth suing someone for even $10,000 in damages, as the article points out, due to the time and costs involved. Good lawyers bill $400+ per hour. $100,000 is a small case.
Class actions are intended as a solution to the very problem you describe. Steal $10 from 1 million people, and it's not worth it for any one of them to file on their own. But a $10 million class action is worth it.
If you aren't in a class, then the unfortunate reality is that you don't have much legal recourse. If someone cheats out out of a $1,000, the result is you don't do business with them again and their reputation may suffer.
There's small claims court, but how much time, money, and opportunity cost are you going to spend on that, and then you have to collect: WHat if the other party ignores the court's judgment? More time in court, etc.
If you're smart, you'll swallow your outrage and move on to something more profitable to spend your time on.
> In the age of 100% computer assisted lawyers and courts, why can't 710 lawsuits be filed?
An excellent hypothetical question, and worth considering when that age arrives. Right now we are in an age of very labor-intensive lawyers and courts.
> Class actions just make lawyers wealthy
They do much more, including deter bad behavior. That's probably why so many companies include a waiver of class action participation in their contracts.
In the previous Gmail litigation a couple of years ago Google Apps for Education users were one of the classes.
In that case Koh dismissed the 1967 California Invasion of Privacy Act eavesdropping claims because users' lawyers could not show the emails were confidential (see Section 632). However she didn't dismiss the wiretapping/interception claims (see Section 631).
Another element required for an eavesdropping claim is lack of consent.
How are you going to show that the granting of consent was in question for each and every user and was thus a "common question"? Maybe some users read the terms and other did not. Maybe some users paid attention to news reports about email scanning and others did not. See Koh's Opinion.
For those interested search "paulhastings.com" "in re google". There is a copy of the unreported Opinion, with some interesting redactions on the devices Google uses to scan email. Content Onebox, Medley Server, Changeling, CAT2 Mixer, ICEbox Server, etc.
What if users started putting "CONFIDENTIAL", as between sender and recipient, at the the top of all their emails? From there one could argue confidentiality implies lack of consent to eavesdropping.
Apparently Google argued users understand that interceptions are part of how all email, not just Gmail, is transmitted.
Intermediary SMTP servers might be "interception" but it seems like a reasonable judge could conclude if a message intercepted says "CONFIDENTIAL" then there's no permission to read it, whether the reading is done by a human or a machine programmed by a human.
I am a fan of Google (and I worked there as a contractor), so I don't intend to be negative, but:
I am happy to be a paying customer of Google; for example: Play Music, Youtube Red, Google Drive, etc.
I less happy with their making money from me indirectly via selling and using data associated with me. I would like to pay a yearly fee for search and gmail, in a privacy mode. I am surprised that this is not something that they do as an option.
I think that Microsoft has hit a sweet spot with a yearly fee for Office 365 (I don't think that Microsoft scans OneDrive files, etc. and makes money from that) and I would like Google to copy that business model.
You can. You can subscribe to Google Apps. They don't advertise at you and scan your stuff only for the purpose of providing you search and related services. https://support.google.com/work/answer/6056650?hl=en
Apps for Work is $60/user; Apps Unlimited is $120/user. That compares quite favorably with Office 365, especially considering the Unlimited includes unlimited Drive.
The reason Google doesn't market such a thing to consumers, is because allowing a "privacy option" would convey that they're violating you're privacy on the free service.
And Google's entire business hinges on people not believing Google violates their privacy. So the possible gains in business isn't worth the loss of their reputation from admitting that.
44 comments
[ 2.0 ms ] story [ 116 ms ] threadI'm missing the part where Google told the students they weren't scanning the emails; wouldn't this just be a failure on the school's part? If they removed all advertising from the service in 2014, I can only imagine that the licensing agreement before that point included some clause about advertising and email content.
>"Google's lies," according to the lawsuit, included a statement on a privacy page for Apps for Education, which was on the web from at least June 2011 to September 2012, and said the apps were "completely ad-free -- which means your school's content is not processed by Google's advertising systems."
Google has maintained that the email scanning for targeted advertising is not a privacy issue in that it is automated and there are no details leaked outside the system. If it turned out that the scanning was done and no actions resulted from that then the whole thing would become philosophical.
"which means your school's content is not processed by Google's advertising systems"
"The article mentions clearly that..."
"Google's lies," according to the lawsuit, included a statement on a privacy page for Apps for Education, which was on the web from at least June 2011 to September 2012, and said the apps were "completely ad-free -- which means your school's content is not processed by Google's advertising systems."
"Please don't insinuate that someone hasn't read an article. 'Did you even read the article? It mentions that' can be shortened to 'The article mentions that.'"
[1]: https://news.ycombinator.com/newsguidelines.html
There are general principles in the law that would say in this specific case, Google is making money off this arrangement, this arrangement is based on making money off of scanning emails, people wronged by this arrangement have a right to recompense, so follow the money, that's where the recompense should come from.
Companies cannot dodge liability for their actions by hiding behind third parties. Otherwise, the UPS or Fedex labelled truck that just ran over your kid would, every time, turn out to be a flat broke independent contractor Uber driver that all the other companies in the chain would point the finger at.
IANAL, but it seems to me the important consideration here is who has duty of care regarding the students, and it's seems clear that it's the school.
Now, if Google lied regarding the scanning, the complaint may be valid, but that's a different argument.
You will see this case continue to move forward through the courts which it would not--plaintiff's lawyers would not even pursue it--if you were correct.
and as a final point, I was not drawing an analogy to independent contract workers, I was using one as an example of an arrangement a court would see through; remove that term and my argument still applies.
That kind of thing carries regulatory fines in EU. There may be a bit of culture clash happening in this thread between Europeans ("this is my data and you need my permission to use it") and SV ("this data is gathered by the company and it's theirs to do with what they wish")
> However, the suits by the students, including 68 from Berkeley and 243 from UC Santa Cruz, have been thrown into uncertainty by a federal judge's suggestion that each student in the largest claim should file separately so the court can collect 710 individual $400 filing fees.
> "Our clerk's office is really unhappy you are circumventing our filing fees by adding 710 cases under one case number," U.S. District Court Judge Lucy Koh told the students' lawyer, Ray Gallo, according to a court transcript.
> Gallo, who is representing the students in both cases, said he expected Google to file a request to separate the 710 claims individually.
> "This is a mass case and the question is, 'Can these people who all have essentially the same claim bring it together so that a lawyer like me will agree to do it?" he said. "If these cases have to be filed individually, no lawyer would take it."
In one hand the lawyer is right, filling what amounts to the same complaint under 710 different cases is burdensome and adds unnecessary complexity in the process.
On the other hand it signals a very bad start by the part of the complainants legal team. Not following judicial (and clerical) procedure to the letter is a very easy way to have the case lost on a technicality.
Being a layman in this area my question is: what prevents them from filling a proper class action?
Either that or what prevents them from filling the case with a single complainant and, in case of success, using the precedent to get an easier time for the rest 709?
Litigating a class action involves not just litigating the merits, but litigating the propriety of filing as a class action. E.g. is the class composed of a definite and ascertainable group of people? Are the facts common to all class members? Settling a class action also requires court approval, whereas setting a lawsuit in which all plaintiffs are joined does not. This adds a whole bunch of motions practice.
In a case like this the plaintiffs would likely win on class certification, since the same alleged harm happened to an easy-to-define group of people. But it's a bunch of extra work for the lawyer, who is probably proceeding on contingency.
Aren't most class actions done on contingency? Also, if they are suing Google, it's hard to believe the extra work of filing a class action would be a significant expense for the plaintiff; there is discovery (and all the skilled labor involved), experts, travel, etc. And it's billable time, which should increase the fees the court approves.
Finally, isn't it usually a race by attorneys to get their class certified first, so they are the lead attorney (and get more of the fees)?
I'm not sure if this happened at any other universities. If so, a class action would make more sense.
[0] https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepc...
Filing fees have no bearing on the case's designation as a mass torte of some kind, and to do otherwise would be unethical (of course). Each district court's budget is determined by a nationwide court office based on workload, not on revenue; this isn't a business. However, each court does keep the fees it collects.
Also, if the clerk's office is unhappy, it would address that directly to the attorneys in more or less subtle ways; in fact, the clerk's office could insist on separate cases being filed. A federal court's clerk's office is hardly helpless; you don't want to mess with them if you're an attorney.
Finally, they said this seems like a straightforward mass torte. But my contact is puzzled about why the plaintiffs have not already filed this case as a class action (which is one kind of mass torte).
It's much worse than that. It's not worth suing someone for even $10,000 in damages, as the article points out, due to the time and costs involved. Good lawyers bill $400+ per hour. $100,000 is a small case.
Class actions are intended as a solution to the very problem you describe. Steal $10 from 1 million people, and it's not worth it for any one of them to file on their own. But a $10 million class action is worth it.
If you aren't in a class, then the unfortunate reality is that you don't have much legal recourse. If someone cheats out out of a $1,000, the result is you don't do business with them again and their reputation may suffer.
There's small claims court, but how much time, money, and opportunity cost are you going to spend on that, and then you have to collect: WHat if the other party ignores the court's judgment? More time in court, etc.
If you're smart, you'll swallow your outrage and move on to something more profitable to spend your time on.
Class actions just make lawyers wealthy.
710 lawsuits makes much more of a statement, no?
An excellent hypothetical question, and worth considering when that age arrives. Right now we are in an age of very labor-intensive lawyers and courts.
> Class actions just make lawyers wealthy
They do much more, including deter bad behavior. That's probably why so many companies include a waiver of class action participation in their contracts.
In that case Koh dismissed the 1967 California Invasion of Privacy Act eavesdropping claims because users' lawyers could not show the emails were confidential (see Section 632). However she didn't dismiss the wiretapping/interception claims (see Section 631).
Another element required for an eavesdropping claim is lack of consent.
How are you going to show that the granting of consent was in question for each and every user and was thus a "common question"? Maybe some users read the terms and other did not. Maybe some users paid attention to news reports about email scanning and others did not. See Koh's Opinion.
For those interested search "paulhastings.com" "in re google". There is a copy of the unreported Opinion, with some interesting redactions on the devices Google uses to scan email. Content Onebox, Medley Server, Changeling, CAT2 Mixer, ICEbox Server, etc.
What if users started putting "CONFIDENTIAL", as between sender and recipient, at the the top of all their emails? From there one could argue confidentiality implies lack of consent to eavesdropping.
Apparently Google argued users understand that interceptions are part of how all email, not just Gmail, is transmitted. Intermediary SMTP servers might be "interception" but it seems like a reasonable judge could conclude if a message intercepted says "CONFIDENTIAL" then there's no permission to read it, whether the reading is done by a human or a machine programmed by a human.
I am happy to be a paying customer of Google; for example: Play Music, Youtube Red, Google Drive, etc.
I less happy with their making money from me indirectly via selling and using data associated with me. I would like to pay a yearly fee for search and gmail, in a privacy mode. I am surprised that this is not something that they do as an option.
I think that Microsoft has hit a sweet spot with a yearly fee for Office 365 (I don't think that Microsoft scans OneDrive files, etc. and makes money from that) and I would like Google to copy that business model.
You can. You can subscribe to Google Apps. They don't advertise at you and scan your stuff only for the purpose of providing you search and related services. https://support.google.com/work/answer/6056650?hl=en
Apps for Work is $60/user; Apps Unlimited is $120/user. That compares quite favorably with Office 365, especially considering the Unlimited includes unlimited Drive.
And Google's entire business hinges on people not believing Google violates their privacy. So the possible gains in business isn't worth the loss of their reputation from admitting that.