• by Wendy Davis  @wendyndavis, March 19, 2014

In a victory for Google, a federal judge has ruled that the company won't have to face a class-action lawsuit for allegedly violating email users' privacy by scanning their messages in order to surround them with ads.

The ruling, issued late on Tuesday by U.S. District Court Judge Lucy Koh, means that consumers who want to sue over the practice must proceed as individuals. As a practical matter, doing so often is prohibitively expensive.

Koh said in her ruling that a class-action wasn't appropriate, because one of the key questions in the case centers on whether users consented to Google's practice of scanning messages. Koh said that determining consent required “an intensely individualized” evaluation of the facts.

“A fact-finder would have to determine to what disclosures each class member was exposed and whether such disclosures were sufficient to conclude ... that class members consented to the alleged Google interceptions of email,” Koh wrote. “The individualized questions with respect to consent, which will likely be Google’s principal affirmative defense, are likely to overwhelm any common issues.”

The lawsuit alleges that Google violates the federal wiretap law by intercepting emails without permission. Last September, Koh rejected Google's argument to dismiss the case. She rejected Google's argument that all Gmail users consented to the scans, ruling that Google's terms of service weren't clear enough to notify users about the company's practices. Koh also rejected Google's argument that all non-Gmail users “implicitly” consent to the scans.

In the latest decision, Koh says some email users could have consented to the scans regardless of Google's terms of service. For instance, she writes, people who used Gmail after reading about its practices in the newspaper might have implicitly consented to the scans.

“A fact-finder could find implied consent even based on broad disclosures,” she writes. “The court finds that Google may rely on news articles to argue to the finder of fact that users impliedly consented, even if those news articles do not recite the specific devices that are alleged to have intercepted class members’ emails.