For years, it has been widely acknowledged that Google, Inc.
("Google") scans incoming and outgoing e-mails associated
with individual Gmail accounts in order to deliver targeted
advertising to Gmail account holders. While Gmail subscribers
may have consented to e-mail scanning when they signed up for
Google's services, many non-subscribers that have sent e-mails
to Gmail account holders never directly authorized Google to scan
the contents of those communications. Now, a new class action
lawsuit filed in Pennsylvania by a non-Gmail subscriber raises the
question of whether Google's practices, and potentially those
of other online services and companies that review or monitor
online communications of various kinds, violate various individual
state laws that prohibit interception of electronic communications
without the consent of all parties to a communication.
The complaint in this case (Brinkman v. Google, Inc.) was filed on
November 30, 2012 in the U.S. District Court for the Eastern
District of Pennsylvania. It alleges that Google
violated Pennsylvania law by intercepting emails the plaintiff sent
to Gmail account holders without the plaintiff's knowledge,
consent or permission. Specifically, the lawsuit alleges that
Google's actions constituted a violation of Section 5703 of Pennsylvania's Wiretapping and Electronic
Surveillance Control Act, which, among other things,
establishes that intentional interception and disclosure of certain
electronic communications are unlawful.
The plaintiff is seeking certification of class status for other
similarly situated persons, declaratory and injunctive relief,
punitive damages, litigation costs and attorneys' fees, and an
award of statutory damages for the plaintiff and each member of the
class for the greater of $100 a day for each day of violation or
This alert provides general coverage of its subject area. We
provide it with the understanding that Frankfurt Kurnit Klein &
Selz is not engaged herein in rendering legal advice, and shall not
be liable for any damages resulting from any error, inaccuracy, or
omission. Our attorneys practice law only in jurisdictions in which
they are properly authorized to do so. We do not seek to represent
clients in other jurisdictions.
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In United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc), the court held that the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, prohibits unlawful access to a computer but not unauthorized use of computerized information.