A recent decision by a federal court in California could expose mobile, Web- and cloud-based businesses to class-action lawsuits for doing nothing more than processing user data. U.S. District Judge Lucy Koh, ruling in a civil lawsuit alleging that Google violated federal and state wiretapping laws when it processed emails through its Gmail service, held that the processing of user data could constitute an illegal interception of electronic communications.
Koh's decision reflects a very narrow interpretation of what it means to process user data in the ordinary course of business. Google, for example, routinely machine-scanned Gmail messages to create user profiles and provide targeted advertising. More troubling for the online community, however, is that when paired with the very broad definition of electronic communications under the federal wiretapping statutes, the decision has the potential to expose a host of current data processing activities to costly class-action litigation. Fortunately, there are certain specific steps that an at-risk business may undertake to mitigate or even avoid this liability.
An expansive application of the federal wiretapping statute
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