On May 26, 2015, a federal judge in the Northern District of California granted class action status to e-mail users that are suing Yahoo for privacy violations.  Judge Lucy Koh ruled that the class can consist of all U.S. residents that are not Yahoo subscribers but sent e-mail correspondence to Yahoo subscribers between October 2, 2011 to the present.  According to the allegations, the non-Yahoo subscribers were unaware that Yahoo reviewed e-mails, copied language from e-mails, reviewed and extracted links in the e-mails, and otherwise invaded the privacy of the non-subscribers in violation of the Stored Communications Act and California’s Invasion of Privacy Act.  The lawsuit claims that Yahoo utilized the information gleaned from the e-mails for its own advertising purposes and sold the information to third-party advertisers. 

Yahoo subscribers are not permitted to join the class because Yahoo informs subscribers that its systems scan and review all ingoing and outgoing messages for certain keywords for purposes of detecting viruses and supporting Yahoo’s advertising activities.  As a result, subscribers were aware that all messages were subject to review.  Allegedly, non-subscribers were not aware of Yahoo’s policies and did not have the ability to opt out of the review.  

Interestingly, Judge Koh issued a ruling in 2014 regarding a very similar allegation with respect to Gmail.  In that case, Judge Koh refused to grant class action status to non-Gmail users that were asserting similar complaints.  Judge Koh ruled that the distinction between those users that consented to Gmail’s review policies and those that did not was too blurry to draw a line.  As a result, she denied class certification.   

Yahoo argued that, similar to Gmail, the Court could not determine which participants had consented to Yahoo’s scanning practices.  The Court rejected that argument.  The Court also rejected the argument that non-subscribers that continued to send e-mails to subscribers after learning of the scanning policies thereby consented to the scanning activities.

Ultimately, the class may number well over a million individuals.  Anyone in the United States that has sent an e-mail to or received an e-mail from a Yahoo account since October 2, 2011, but does not individually operate a Yahoo account, is within the class parameters.  The implications of this ruling are wide-spread and could affect the manner in which on-line data collectors scan e-mails, photo messages, text messages, and other forms of communications.   

To read the entire order: http://pdfserver.amlaw.com/ca/Yahoo_Order.pdf