• by Wendy Davis  @wendyndavis, March 18, 2015

Yahoo is asking a judge to deny class-action status to a group of people who are suing the company for scanning their email messages.

The company argues in new court papers that the lawsuit doesn't lend itself to class-action treatment because one of the key unresolved issues turns on whether Web users consented to the scans. Yahoo says that users' consent needs to be litigated on a case-by-case basis.

The court battle, which dates to October of 2013, stems from allegations that Yahoo violates email users' privacy by scanning their messages in order to surround them with ads. The lawsuit was filed several days after U.S. District Court Judge Lucy Koh in the Northern District of California ruled that a similar ad program by Google potentially violates the federal Electronic Communications Privacy Act. That law prohibits companies from intercepting communications without users' consent.

The group of Web users suing Yahoo alleges that they didn't have Yahoo email accounts themselves, and therefore never agreed to the company's terms of service -- which provide that Yahoo analyzes all communications in order to display relevant ads.

Yahoo has indicated that it will defend itself, in part, by arguing that the plaintiffs implicitly consented to the scans, regardless of whether they read Yahoo's terms of service.

“There is simply no way to determine with evidence common to the class which nonusers have consented to scanning,” Yahoo argues in papers filed late last week with Koh.

The company says it posted information about its scanning practices on publicly accessible Web sites, and that the practices were discussed in news articles. If non-Yahoo accountholders read those articles, or the publicly posted terms of service, they may have “impliedly consented” to the scans, Yahoo argues.

If Koh denies class-action status, the people who are suing can still proceed as individuals, but doing so can be prohibitively expensive.

Last year, even though Koh ruled that Google's email scans potentially violate the wiretap law, she refused to allow the users to proceed as a class. The plaintiffs settled that matter soon after Koh's decision.