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Privacy: NebuAd Partner Cleared, Google Case to Proceed

October 1 2013
In the US, one of the remaining class action suits against ISPs who partnered ad targeting company NebuAd back in 2008 has been dismissed by an Illinois federal judge. Google, however, didn’t fare so well with an attempt to dismiss claims over its Gmail scanning activity.

Google Case to ProceedLast Friday, US District Judge Edmond E. Chang ruled that ISP WideOpen West Finance LLC (now known as WOW) faces no liability under privacy laws in a class action over its partnership with NebuAd, which collected behavioral data from WOW customers. Chang dismissed the case with prejudice - meaning it cannot be reopened - on the grounds that WOW did not itself intercept any transmissions, and did not itself receive any of the information which it allowed NebuAd to collect.

The WOW decision follows dismissal of most of the other related ISP suits, earlier in the year - only the case against ISP Bresnan is still pending. NebuAd itself was sued in late 2008 and paid $2.4m to settle despite assurances that its system was anonymous and provided adequate opt-outs - it ceased trading the following May.

Meanwhile Federal Judge Lucy Koh has declined a request by Google to dismiss a class action alleging its scanning of Gmail for ad targeting purposes violates federal and state wiretapping laws. Google had argued that its privacy policy implies user consent to its scanning practices, but Koh said the alleged interceptions were ‘neither instrumental to the provision of email services, nor ...an incidental effect of providing these services’. It’s therefore plausible that they ‘fall outside Google's ordinary course of business’ as alleged.

Google put in place new policies in March 2012, with revised wording to explain its privacy policy - but Koh said the new wordings are ‘no clearer than their predecessors in establishing consent’ and that ‘a reasonable Gmail user who read the privacy policies would not have necessarily understood that her emails were being intercepted to create user profiles or to provide targeted advertisements’.

Google said it was ‘disappointed’ with the decision, and pointed out that ‘Automated scanning lets us provide Gmail users with security and spam protection, as well as great features like Priority Inbox’. The decision could also be bad news for rival Yahoo, which has also scanned users’ emails.