July 2, 2012 — -- By now most of us have accepted a fact of the digital age: If, say, we write the word "eyeglasses" in the body of an email, advertisements for LensCrafters and Armani specs will most likely pop up on our computer screens soon. We may not like it, but we understand that we trade privacy for the convenience of modern technology.
But some California residents have decided to take a stand against it, and have filed two class action lawsuits against Google and Yahoo in Marin County Superior Court. The suits, filed on June 12 and June 28, claim that the web giants illegally intercept emails sent from individual non-Gmail and non-Yahoo subscribers to individual Gmail and Yahoo subscribers, without their knowledge, consent or permission. What's more, they say the interception takes place before the email reaches its intended target.
"We began the investigation quite some time ago when a client came to us," said F. Jerome Tapley, a lawyer in Birmingham, Ala. who represents the plaintiffs. "They noticed that the ads within their email browser were strangely correlating to the incoming email they were getting from their friends. It creeps people out."
In the suit, Stuart Diamond, of Marin County; David Sutton, also of Marin County; and Roland Williams of Sonoma County -- none of whom have personal Google or Yahoo email accounts, but have sent emails to people who do -- allege that Google and Yahoo are violating the California Invasion of Privacy Act (CIPA), which prohibits anyone from wiretapping or eavesdropping on emails without the consent, knowledge and permission of all parties.
"The invasion of privacy by wiretapping or, in the alternative, eavesdropping, caused by Google and Yahoo's! continual and pervasive use of such devices seriously threatens the exercise of personal liberties," the lawyers write
The suit, which is for unspecified financial damages, was filed on behalf of all residents of California who are not Google or Yahoo email subscribers but have sent emails to people who are.
Yahoo did not respond to requests for comment, but in an email statement a Google spokesperson said, "We're not going to comment on the ongoing litigation. But to be clear, ad targeting in Gmail is fully automated, and no humans read users' emails or Google account information in order to show advertisements."
Perry Litchfield, another plaintiffs' lawyer in San Rafael, Calif., said he is unimpressed.
"It's fundamental that computers have to be monitored and operated by people," he said. What's more, he added, the lawsuit is not about Gmail users -- it's about the people who send them emails. "Who knows how sophisticated they are? Certainly there are sophisticated ways to determine what you're thinking as far as advertising is concerned."
Currently, there are no federal laws specifically governing behavioral advertising on the web, nor is there a comprehensive general privacy law. But last week, Facebook agreed to let users know that when they "like" a product on Facebook, their names and photos can be used to endorse the item. Users will be allowed to decline the opportunity to be unpaid promoters; parents of users under 18 will also get the chance to keep their kids out of ads. Facebook also agreed to donate $10 million to charity, and pay $10 million to cover the plaintiffs' legal fees.
Tapley said he hopes Google and Yahoo do the right thing, too. "I'd like to see them stop this behavior that's in violation of the penal code and to compensate people whose privacy they violated."