Yahoo to Face Class Action Over E-mail Scanning

A judge in California has certified a class action lawsuit that accuses Yahoo of illegally scanning e-mails sent to Yahoo Mail users. The suit, filed in the U.S. District Court for the Northern District of California, claims that e-mails sent to Yahoo addresses by non-Yahoo Mail users are routinely scanned and analyzed for keywords in violation of federal and state wiretapping laws. In certifying the case, presiding judge Lucy Koh approved a class of all California residents who are not Yahoo Mail users who sent an e-mail to a Yahoo address after October 2, 2011.

If this all sounds familiar, that’s because it is. Yahoo faced almost identical accusations in 2013, while Google – arguably Yahoo’s biggest rival – faced is own e-mail scanning lawsuit in October 2013, avoiding litigation only because Judge Koh ruled that defining the class and working out which Google users had agreed to the service’s terms and conditions posed too great a burden. That’s certainly not the case with Yahoo’s current lawsuit. In asking for certification, plaintiffs claimed that Yahoo scans e-mails sent by non-Yahoo users in order to extract keywords, giving non-Yahoo users no say or chance to opt-out of the practice. In its Yahoo Mail FAQ, the company plainly states how its system works:

“When you use the new Yahoo Mail our automated systems scan and analyze all incoming and outgoing communications content sent and received from your account (such as Mail and Messenger content including instant messages and SMS messages) to detect, among other things, certain words and phrases (we call them "keywords") within these communications. […]Yahoo’s automated systems will scan and analyze all incoming and outgoing email, IM, and other communications content sent and received from your account in order to personalize your experience.”

Yahoo Mail users can, of course, opt-out of this service – but the current lawsuit is concerned with individuals who don’t use Yahoo Mail themselves. The lawsuit makes claims under the Stored Communications Act and California’s Invasion of Privacy Act. Further allegations were originally brought under the federal Wiretap Act, but were dropped after Yahoo filed a partial motion to dismiss. In its counter argument, Yahoo claimed that plaintiffs (that is, non-Yahoo users) lacked standing to sue because they’d continued to send e-mails to Yahoo Mail users even after knowing about the e-mail scanning program. Thankfully, Judge Koh rejected the argument as “overly narrow.” The fact is, there remains the possibility of future harm for non-Yahoo users, and because of that, the lawsuit will officially continue on as a class action.

Online privacy has never mattered more. Earlier this year, as part of ClassAction.org’s list of Cases to Watch in 2015, we highlighted social media privacy lawsuits as a growing area of litigation. If this case is anything to go by, there’s a lot more to come. E-mail scanning does not have to be nefarious or something to worry Internet users, but it does need to be clearly laid out, easy to understand and – crucially – easy to opt out of, even for a service you don’t regularly use. Doesn’t the content of an e-mail belong, in the end, to the individual who wrote it, no matter the means of delivery? We’ll be watching this case closely.