Davis v. Google Inc.

Filing 1

NOTICE OF REMOVAL by Google Inc. from District Court of Bowie, Texas, case number 12C0247-102. (Filing fee $ 350 receipt number 0540-3508442), filed by Google Inc.. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit 1 - Petition from State Court, # 3 Exhibit 2 - Amended Petition from State Court, # 4 Exhibit 3 - Discovery Requests, # 5 Exhibit 4 - Dunbar Complaint, # 6 Exhibit 5 - Dunbar Order, # 7 Exhibit 6 - Email, # 8 Exhibit 7 - AR Complaint, # 9 Exhibit 8 - Certified Copy of State Court Docket Sheet)(Babcock, Charles)

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
KEITH DUNBAR, Individually, and as
Representative on Behalf of all Similarly
Situated Persons,
Plaintiff,
versus
GOOGLE, INC.

Civil Action N o 5:10CV00194-DF
SECOND AMENDED
CLASS ACTION COMPLAINT
JURY DEMANDED

Defendant.

INITIALLY FILED UNDER SEAL PURSUANT TO AGREED PROTECTIVE ORDER

1
EXHIBIT 4

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PLAINTIFF, KEITH DUNBAR, Individually and on behalf of the Class described below (“the
Class”), brings this nationwide Class Action suit against Defendant Google, Inc. (“Google”), and for
his Second Amended Complaint, and upon information and belief, alleges the following:
PARTIES
1.

Plaintiff is a citizen of the State of Texas, and he resides in Bowie County, Texas, which

is within the Eastern District of Texas, Texarkana, Division.
2.

Google is a Delaware corporation, whose principal place of business is at 1600

Amphitheatre Parkway, Mountain View, County of Santa Clara, State of California. Google has been
served through its agent for service of process: Corporation Service Company d/b/a CSC – Lawyers
Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, Texas 78701-3218.
JURISDICTION AND VENUE
3.

Pursuant to 28 U.S.C. § 1331, this Court has original jurisdiction over the Plaintiff’s and

the Class’ claims arising under the Electronic Communications Privacy Act of 1986 (“ECPA”), 18
U.S.C. §§ 2510 et seq., a law of the United States.
4.

This Court has general and specific personal jurisdiction over the Defendant, in that

Google has sufficient minimum contacts within the State of Texas and within the Eastern District of
Texas, and further because certain material acts upon which this suit is based occurred within the
Eastern District of Texas.
5.

Venue is proper in the Eastern District of Texas pursuant to 28 U.S.C. § 1391(b) and (c)

in that: (1) Google resides in the Eastern District of Texas because it is subject to personal jurisdiction
within the Eastern District of Texas; (2) a substantial part of the events or omissions giving rise to the
claims asserted herein occurred in this judicial district; and (3) Google may be found in this district.
NATURE OF SUIT
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6.

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Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiff brings this

nationwide class action lawsuit against Google for the unlawful (1) intentional interception of
electronic communications and (2) intentional use of the contents of electronic communications in
violation of the Electronic Communications Privacy Act of 1986 (“ECPA”), 18 U.S.C. Sections 2510 et
seq. Google operates a popular email service known as “Gmail.” Gmail account holders are assigned a
Gmail email address through which to send and receive electronic communications. Through its
Google Apps Partner program, Google also operates it Gmail service on behalf of Internet Service
Providers (ISP’s), such as Cable One, who then re-sell to their customers, like Plaintiff, the Gmail
service labeled as “Cable One, Powered by Google.”
7.

Google scans the content of all electronic communications received by Gmail account

holders and customers of Google Apps Partners. Utilizing multiple devices, Google intercepts all
electronic communications sent to Gmail account holders and certain Google Apps Partners who re-sell
to their customers the Gmail service. Google uses the information and content obtained from the
scanning of incoming electronic communications to sell and place in certain account holders’ browser
windows advertisements that are related to the content and meaning of intercepted electronic
communications. In addition, Google uses the information and content obtained from the scanning of
incoming electronic communications to Gmail account holders and certain Google Apps Partners
customers for multiple uses other than the placement of advertisements to that particular recipient. One
such believed use, based upon publicly available patents and patent applications, includes Google’s
continued amassing of data from email in order to “learn” and train its artificial intelligence device
known as “PHIL.”
8.

The actions complained of herein involve the interception and use of content from

Plaintiff’s and Class Members’ 1 electronic communications (email) when those emails are sent to a

1

The Class definition can be found at ¶ 209.

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Gmail user (“@gmail.com”) or to an “@cableone.net” email address held by a Cable One Web Mail
account holder, whether through the initialization of electronic communications to the Gmail user or
Cable One Web Mail user, a response/reply to an electronic communication from the Gmail user or
Cable One Web Mail user, or any subsequent new electronic communication transmitted by Plaintiff
and Class Members to a Gmail user or Cable One Web Mail user. This case does not involve the
scanning of previously sent text from Plaintiff’s and Class Members’ prior emails which may be in the
body of responsive communication.
9.

Google’s interception of electronic communications (i.e. emails) sent from Plaintiff and

other [e-mail] emailers violates 18 U.S.C. § 2511(1)(a). Google’s use of content obtained
from the intercepted emails sent by Plaintiff and other [e-mail] emailers violates 18 U.S.C. §
2511(1)(d).
STATEMENT OF FACTS
10.

Google owns the world’s leading internet search engine, and, as part of its marketing

strategy, offers a vast array of services to internet users. Google’s “free” services lure internet users,
allowing Google to generate the majority of its revenues by selling online advertising aimed at the
users of these “free” services.

The more users or usage through Google services that can be

demonstrated by Google to advertisers, the more revenue Google makes.
11.

As part of its advertising business model, Google actively seeks out, collects, and stores

vast amounts of behavioral information regarding internet users. For Google, the acquisition, storage,
and ready access to information directly correspond to advertising revenues. As such, Google’s
advertising business model requires it to continue to acquire additional information. Personalized,
detailed, and behavioral information is the most valuable to Google.
12.

However, unbeknownst to the World, Google also seeks to acquire, track, learn, profile,

store, and understand the thoughts and behavioral habits of the users of Google’s services. To do this,
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Google needs data.
13.

Google also owns Postini. Postini is an email and web security service that provides

cloud computing services for filtering email spam and malware. Google sells the Postini product to
third parties. The Postini product is only as good as the new data provided to it.
14.

“Gmail” is an electronic communication service operated by Google.

15.

Google requires users of Gmail to register for the use of Gmail separate and apart from

using other Google services.
16.

Google assigns Gmail account holders a Gmail email address ([e-mail])

for the purposes of sending and receiving electronic communications through the electronic
communication service operated by Google (i.e. Gmail). Gmail account holders can receive electronic
communications from other Gmail account holders and from [e-mail] account holders.
17.

In addition, Google offers a program called “Google Apps Partner Edition,” which

allows Internet Service Providers (ISP’s) to purchase certain Google products in order resell those
products to the ISP’s customers under the ISP domain name and service.
18.

Prior to November 16, 2010, Plaintiff was a paying Cable One account holder for his

internet service at his home and business. Included within this paid service from Cable One was
Plaintiff’s email service, within which he and his family (for personal and work use) held email
accounts via @cableone.net email addresses.
19.

On November 16, 2010, Plaintiff learned that Cable One was requiring him and all other

Cable One account holders to migrate their email accounts in order for those accounts to be “Powered
by Google,” but still remain paid Cable One and @cableone.net email accounts. As Cable One was his
existing paid Internet Service Provider and his @cableone.net email account was included within the
paid service, Plaintiff, as with all Cable One account holders who desired to continue to use their paid
for @cableone.net email accounts, migrated his account to be “Powered by Google.”
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20.

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Upon information and belief, even if an @cableone.net user did not migrate their

account, as with one of Plaintiff’s accounts, that account was automatically migrated without the
knowledge of the cableone.net user. Google intercepts and uses the content of emails to and from these
accounts.
21.

Since the migration, Plaintiff and all other Cable One account holders with

@cableone.net email account addresses have been “Powered by Google.” Although the Cable One
Web Mail page appears when Plaintiff and Cable One account holders use their @cableone.net email
accounts, the email service is Gmail.
22.

Prior to and after the migration, Plaintiff has sent and continues to send electronic

communications to @gmail.com account holders.
23.

After the migration, Plaintiff has sent and continues to send electronic communications

to @cableone.net account holders who have also migrated to be “Powered by Google.”
24.

Google intercepted(s) Plaintiff’s electronic communications and used(s) the content of

these emails for multiple purposes.
25.

Neither Plaintiff nor the @gmail.com and migrated @cableone.net account holders

consented(s) to the interception and use of Plaintiff’s electronic communications and the contents
thereof.

The Contract Between Gmail Users and Google;
The Cable One Account Holders Agreements
26.

In order to obtain a Gmail account for an @gmail.com email address a person must

agree to the Google Terms of Service, the Gmail Legal Notice, the Google Program Policies, and the
Google Privacy Policy. Each of these documents is a written contract comprising specific written
clauses.
27.

The Terms of Service is attached as Exhibit D. The Gmail Legal Notice is attached as
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Exhibit F. The Program Policies is attached as Exhibit G. The Privacy Policy is attached as Exhibit H.
28.

To create a Gmail account, a person may view a webpage entitled, “A Google approach

to Email.” See Exhibit A.
29.

The webpage entitled “A Google approach to Email” does not mention advertising,

interception of email content, or use of email content. Instead, Google touts “Lots of Space,” “Less
Spam,” and “Mobile Access.” See Exhibit A.
30.

This webpage contains links to “Create an account,” to “Terms & Privacy,” and to

“About Gmail.” See Exhibit A.
31.

If a person clicks on the link “About Gmail,” the person is taken to a webpage entitled

“Google’s Approach to Email.” See Exhibit B. This webpage gives Google’s “Top 10 reasons to use
Gmail.” Neither advertising nor receiving targeted ads is ever mentioned. Further, Google does not
mention interception of email content or use of email content.
32.

At the top right of Exhibit B, “Google’s Approach to Email,” a big, blue rectangular

button invites the user to “Get Started.” Clicking that link takes a user directly to the “Create an
Account” webpage attached as Exhibit C.
33.

When a person clicks on the link to “Create an Account” on Exhibit A or on the inviting

blue “Get Started” button on Exhibit B, the Gmail account page appears. See Exhibit C. After entering
some personal information for the creation of the account, the person is asked to affirmatively agree to
only three documents, all of which Google drafted: Google’s Terms of Service, Google’s Program
Policy, and Google’s Privacy Policy. See Exhibit C.
34.

Google’s Terms of Service is contained in a single written document entitled, “Google

Terms of Service.” See Exhibit D. When a person interested in reading the Terms of Service prints a
“Printable Version” of the “Terms of Service,” as allowed by Google’s sign-in screen and encouraged at
¶ 2.4, a single document numbering nine (9) pages and paragraphs numbered 1.1 through 20.7 is
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printed. See Exhibit D.
35.

In the “Google Terms of Service,” Google expressly defines the collective word “Terms”

to include only: (1) the “terms and conditions” set forth in the “Terms of Service” which Google
defines as the “Universal Terms;” and (2) the “terms of any ‘Legal Notices’” applicable to a specific
Service, which Google defines as the “Additional Terms.” See Exhibit D, ¶ 1.2 and 1.3. According to
Google in ¶ 1.4 of the Terms of Service, only the “Universal Terms” and the “Additional Terms” form
“a legally binding agreement between [the user] and Google in relation to [the user’s] use of the
Services.” See Exhibit D, ¶ 1.4.
36.

At paragraph 7.1, Google refers the user to certain “data protection practices” through a

hyperlink, but Google only binds the Gmail user to Google’s specific Privacy Policy mentioned at ¶
7.2. See Exhibit D, ¶¶ 7.1 and 7.2.
37.

Paragraph 20.2 provides that “The Terms constitute the whole legal agreement between

you [Gmail user] and Google and govern your use of the Services.” See Exhibit D, ¶ 20.2. Other than
the privacy policy referenced at ¶ 7.2, no other hyperlinks, webpages, documents, practices, or other
terms are incorporated by reference to be included in and made a part of the “Google Terms of Service”
and to create a binding agreement between Google and Gmail user.
38.

Paragraph 20.7 of the Terms of Service provides that “The Terms . . . shall be governed

by the laws of the State of California.” See Exhibit D, ¶ 20.7.
39.

As to the incorporated “Legal Notices,” Google’s Terms of Service at ¶ 1.5 specifically

states, “If there is any contradiction between what the Additional Terms say and what the Universal
Terms say, then the Additional Terms shall take precedence in relation to that Service.” See Exhibit D,
¶ 1.5 (emphasis added). Accordingly, the Additional Terms or “Legal Notices” specific to Gmail take
precedence over any conflicting provision contained in Universal Terms of the Google Terms of
Service.
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40.

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In looking at the “A Google approach to email” screen (See Exhibit A), there exists a

link for “Terms & Privacy.” Once clicked, the “Terms & Privacy” screen lists the following: Legal
Notices, Privacy Policy, Program Policies, and Terms of Service. See Exhibit E. When the user clicks
on “Legal Notices” for Gmail (also called the “Additional Terms”), a one page, two paragraph
document is provided. See Exhibit F.
41.

In the “Gmail Legal Notices,” Google states its does not claim any ownership in any of

the content of any material transmitted in the Gmail account. See Exhibit F.
42.

In the “Gmail Legal Notices,” Google affirmatively states to the user, “We will not use

any of your content for any purpose except to provide you with the Service.” See Exhibit F (emphasis
added). The “Service” stated in Exhibit F is Gmail.
43.

From the “Create an Account” webpage (attached as Exhibit C), the Gmail applicant is

required to accept the terms of Google’s Program Policy. Upon clicking the link to the “Program
Policy,” the reader is shown a two-page document, entitled, “Gmail Program Policies.” See Exhibit G.
No other hyperlinks, web-pages, documents, practices, or other terms are incorporated by reference to
be included in and made a part of the “Gmail Program Policies.” Upon printing a version of the
“Gmail Program Policies” only the two page document found at Exhibit G will print.
44.

In addition to other terms, the Gmail Program Policy prohibits a user from using “Gmail

to violate the legal rights (such as rights of privacy and publicity) of others.” See Exhibit G, page 1.
45.

From the “A Google approach to email” webpage (attached as Exhibit A), the Gmail

applicant can access the “Terms & Privacy” page at Exhibit E. Once there, the user can open Google’s
Privacy Policy. Upon clicking the link to the “Privacy Policy,” the reader is shown a four-page
document, entitled, “Privacy Policy.” See Exhibit H. No other hyperlinks, web-pages, documents,
practices, or other terms are incorporated by reference to be included in and made a part of the “Privacy
Policy.” Upon printing a version of the “Privacy Policy” only the two-page document found at Exhibit
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H will print.
46.

“Google Terms of Service,” “Gmail Legal Notices,” “Gmail Program Policies,” and

Google’s “Privacy Policy,” (Exhibits D, F, G, H) are the only terms to which the applicant must
affirmatively “accept” and agree.
47.

For the operation of a Cable One account, Cable One states that a user agrees to be

bound by its Terms and Conditions. See Exhibit Q. No other document or terms are incorporated into
the Cable One Terms and Conditions.
48.

While not part of any contract on the part of the Cable One user, Cable One’s Privacy

Policy specifically states, “Cable ONE does not routinely monitor the activity of user accounts except
for measurements of system utilization, general statistical analyses and the preparation of billing
records and logs which result in the gathering of minimal personally identifiable information, including
names and e-mail addresses of visitors to this website.” See Exhibit R.
49.

As part of the forced migration of the @cableone.net email accounts to be serviced by

Gmail, all paid Cable One Web Mail users were required to agree to the Google Apps Terms of Service
in order to access and utilize their for-pay Cable One Web Mail in the @cableone.net accounts. See
Exhibit S.
50.

As part of the forced migration of the @cableone.net email accounts to be serviced by

Gmail and as part of the Google Apps Terms of Service, all paid Cable One Web Mail users were
required to agree to, and Google is bound by, the Google Program Polices and Legal Notices, as
previously identified at Exhibits G and F, respectively.
51.

However, unlike the Google Terms of Service which specifically incorporated the

Google Privacy Policy into the Terms of Service, the Google Privacy Policy in the Google Apps Terms
of Service is only referenced for informational purposes and is not a part of the Google Apps Terms of
Service. In its Google Apps Terms of Service, Google in fact limits its access to “any Content” within
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incoming or outgoing mail of @cableone.net accounts to only those instances if Google is “required to
do so by law or in a good faith belief that such access” is “reasonably necessary” to (a) satisfy any
applicable law, regulation, legal process or enforceable government request, (b) enforce the Terms of
Service, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address
fraud, security or technical issues (including, without limitation, the filtering of spam), or (d) protect
against imminent harm to the rights, property or safety of Google, its uses or the public as required or
permitted by law. See Exhibit S, pages 1-2. As such, Google expressly states to the migrated Cable
One Web Mail users it will not access “any Content” of @cableone.net emails or emails received by
@cableone.net accounts for any purpose other than as stated above, and only then if it is required by
law or is in good faith belief it is reasonably necessary.
52.

Importantly, the migrated Cable One Web Mail users sending and receiving emails from

their @cableone.net accounts are not displayed advertisements on their Cable One Web Mail user
screens.
Google Intercepts and Uses the Contents of Plaintiff’s and Class Members’ Email
53.

In various webpages and through links appearing on those webpages, none of which are

incorporated into the Terms of Service or any binding terms upon a Gmail user, Google makes a
number of admissions regarding its interception and use of email content. Google chose to include the
following language in its Terms of Service, “The Terms constitute the whole legal agreement between
you and Google and govern your use of the Services . . . and completely replace any prior agreements
between you and Google.” See Exhibit D, ¶ 20.2.
54.

From a webpage entitled, “Privacy Center,” Google mentions its Privacy Policy as a

separate document, and then states, “The following statements explain specific privacy practices with
respect to certain products and services.” See Exhibit I, page 1 (emphasis added). Below the statement
is a list of products and services. Gmail is not listed.
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55.

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There is no way for a user to intuit that Gmail, as a service, is related to any link

referenced on the Google Privacy Center page. See Exhibit I.
56.

In the left column of the “Privacy Center” webpage (attached as Exhibit I), there exists

a link to “Advertising.” When the “Advertising” link is clicked, a webpage entitled, “Advertising and
Privacy” can be viewed. See Exhibit J.
57.

Google does not incorporate by reference the information on the webpage entitled,

“Advertising and Privacy,” into the Google Terms of Service, the Gmail Legal Notice, the Program
Policy, or the Privacy Policy.
58.

In the next to the last paragraph of Exhibit J, Google states, “What information does

Google use to serve ads on Gmail?” See Exhibit J, page 4 (emphasis added). Google then says:
Google scans the text of Gmail messages in order to filter spam and detect
viruses. The Gmail filtering system also scans for keywords in users’ emails
which are then used to match and serve ads. The whole process is automated and
involves no humans matching ads to Gmail content.
See Exhibit J, page 4.
59.

Google does not incorporate these words into the Terms of Service, the Gmail Legal

Notice, the Program Policy, or the Privacy Policy.
60.

The sentence, “The Gmail filtering system also scans for keywords in users’ emails

which are then used to match and serve ads,” is a false statement.
61.

The sentence, “The whole process is automated and involves no humans matching ads to

Gmail content,” is a false statement.
62.

In addition, at Exhibit J, Google only tells users it scans for “keywords” in the “users’

emails.”
63.

However, Google acquires the content of Plaintiff’s and Class Members’ emails before

they are delivered to Gmail users.
64.

These emails are electronic communications as defined by 18 U.S.C. § 2510(12).
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65.

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The “keywords” and other information within the emails scanned by Google amount to

content of Plaintiff’s and Class Members’ email.
66.

Either in the scanning process, the matching process, or in some other as of yet unknown

manner, the content is acquired from Plaintiff’s and Class Members’ email by a device or multiple
devices. While the devices may be automated, at least one believed device is asserted to have the
ability to learn the “meaning behind text” by learning the relationships between words and concepts
from a large amount of acquired data. This device is called “PHIL,” or the Probabilistic Hierarchical
Inferential Learner. See Exhibit T.
67.

The devices used by Google are not a telephone or telegraph instrument, they are not

telephone or telegraph equipment, they are not a telephone or telegraph facility, and they are not any
component thereof.
68.

Following the acquisition of the “keywords” or content of Plaintiff’s and Class

Members’ email, Google uses those “keywords” or content to serve advertisements to @gmail.com
user displays and for other purposes. Following the acquisition of the “keywords” or content of
Plaintiff’s and Class Members’ email, Google uses those “keywords” or content for multiple other
purposes.
69.

On a web-page entitled “More on Gmail and privacy” (which is not accessible by links

from Google’s “Terms of Service,” “Program Policy,” “Privacy Policy,” “Privacy Center,” “Google’s
approach to email,” or any page to which Google refers users regarding Gmail and not incorporated by
Google into the Terms of Service), Google states:
Google scans the text of Gmail messages in order to filter spam and detect
viruses, just as all major webmail services do. Google also uses this scanning
technology to deliver targeted text ads and other related information. This is
completely automated and involves no humans.
See Exhibit K, page 2, 3d ¶. The sentence, “Google also uses this scanning technology to deliver
targeted text ads and other related information,” is a false statement. The sentence, “This is completely
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automated and involves no humans,” is a false statement. Google further states:
It is important to note that the ads generated by this matching process are
dynamically generated each time a message is opened by the user—in other
words, Google does not attach particular ads to individual messages or to users’
accounts.
See Exhibit K, page 2, 4th ¶. The phrase, “Google does not attach particular ads to individual messages
or to users’ accounts,” is a false statement.
70.

Google does not incorporate any of the information of Exhibit K into the Terms of

Service, the Gmail Legal Notice, the Program Policy, or the Privacy Policy.
71.

In Exhibit K, Google only tells user’s it scans “Gmail messages.”

72.

However, Google also scans Plaintiff’s and Class Members emails before they are

delivered to @gmail.com and @cablone.net users.
73.

These emails are electronic communications pursuant to 18 U.S.C. § 2510(12).

74.

The “text” of Plaintiff’s and Class Members’ email that is scanned and acquired by

Google amounts to content of Plaintiff’s and Class Members’ email.
75.

Either in the scanning process, the matching process, or in some other as of yet unknown

manner, the content is acquired from Plaintiff’s and Class Members’ email by a device or multiple
devices. While the devices may be automated, at least one believed device is asserted to have the
ability to learn the “meaning behind text” by learning the relationships between words and concepts
from a large amount of acquired data. This device is called “PHIL,” or the Probabilistic Hierarchical
Inferential Learner. See Exhibit T.
76.

The devices are not a telephone or telegraph instrument, they are not telephone or

telegraph equipment, they are not a telephone or telegraph facility, or any component thereof.
77.

The acquisition of content from Plaintiff’s and Class Members’ email occurs in the

transfer of that email to the @gmail.com or @cableone.net user.
78.

Following the acquisition of the “text” or content of Plaintiff’s and Class Members’
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email, Google uses the “text” or content of Plaintiff’s email to generate advertisements and for other
purposes.
79.

Upon information and belief, and without limitation, Google utilizes an embodiment of

an extraction device or devices mentioned in United States Patent Application US 2004/0059712 A1, or
one similar thereto, to intercept Plaintiff’s and Class Members’ email and to acquire content from that
email and use (i.e. match) that content to target advertisements displayed on the Gmail user’s screen.
See Exhibit L.

The patent application was filed under the Attorney Docket No.: Google-31/CON3

(GP-064—04-US). See Exhibit M. Although several claims of the proposed invention were rejected
on or about February 1, 2011, the Application illustrates the device(s) used by Google to intercept
electronic communications.
80.

At ¶ 0087 of Exhibit L, Google’s application discusses embodiments of an invention

which may utilize various “devices” for the extraction or acquisition of content from in-coming email.
See Exhibit L, ¶ 0087. In doing so, Google refers to Figure 5, block 520, entitled “Accept and/or
Determine E-Mail Information,” and Figure 6, block 612, entitled “Relevance Information
Extraction/Generation Operations.” See Exhibit L, ¶ 0087. In describing the “extraction operations,”
Google states, “an e-mail server may extract and/or generate e-mail information.” See Exhibit L, ¶
0087. In addition, Google states, “Indeed, e-mail information extraction and/or generation may be
distributed over more than one device (e.g., e-mail application, browser, e-mail server, e-mail
information server, e-mail relevant ad server, etc.).” See Exhibit L, ¶ 0087.
81.

In addition, Google states, “Various ways of extracting and/or generating relevance

information are described in U.S. Provisional Application Serial No. 60/413,536, entitled, ‘METHODS
AND APPARATUS FOR SERVING RELEVANT ADVERTISEMENTS’, filed on Sep. 24, 2002, . . .
and in U.S. patent application Ser. No. 10/314,427, entitled “METHODS AND APPARATUS FOR
SERVING RELEVANT ADVERTISMENTS’, filed on Dec. 6, 2002 . . . .” See Exhibit L, ¶ 0089.
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82.

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The “e-mail information” of Plaintiff’s and Class Members’ email that is extracted by

Google amounts to the content of Plaintiff’s and Class Members’ emails. See Exhibit L, ¶¶ 0046, 0051,
and 0055-80.
83.

The “e-mail information” or content of Plaintiff’s and Class Members’ email is

“extracted” or acquired by Google by use of a “device” or “more than one device.”
84.

The device or devices are not a telephone or telegraph instrument, they are not telephone

or telegraph equipment, they are not a telephone or telegraph facility, or any component thereof.
85.

The interception of Plaintiff’s and Class Members’ email occurs during the transfer of

that email to the @gmail.com and @cablone.net user.
86.

Following the “extraction” of “e-mail information” or content from Plaintiff’s and Class

Members’ email, Google uses the “e-mail information” or content “for purposes of targeted ads.” See
Exhibit L, ¶ 0087.
87.

Apart from these interceptions, Google uses multiple devices throughout the data flow

process to intercept the content of Plaintiff’s and Class Members’ emails to @gmail.com and
@cableone.net recipients.
Google’s Use of Intercepted Content From Plaintiff’s and Class Member’s Email
88.

Google’s interception and use of the content of Plaintiff’s and Class Members’

electronic communications is not limited to the placement of targeted advertising displayed on a Gmail
user’s screen.
89.

Google intercepts, acquires, and uses the content of Plaintiff’s and Class Members’

electronic communications to build profiles on users.
90.

Upon information and belief, Google utilizes an embodiment of United States Patent

Application US 60/676,571, “PHIL,” and subsequently issued United States Patents US 7,383,258 B2
and US 7,231,393 B1, in the delivery of email to @gmail.com users, and uses email content obtained
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from Plaintiff and Class Members’ email to @gmail.com and @cableone.net users for purposes
associated with PHIL. See Exhibit T. These embodiments are also used by Google, in regard to the
content of Plaintiff’s and Class Members’ email, for other purposes.
91.

Regarding this artificial intelligence model, Google speaks of PHIL and the “Learning of

PHIL” as follows:
a. “The system we are about to describe does so [capture much of the meaning behind
text], by learning the relationships between words and ‘concepts’ from a large
amount of data.” Exhibit T, page 1 (emphasis added).
b.

“Our system, the Probabilistic Hierarchical Inferential Learner (PHIL) learns
concepts by learning any explanatory model of text. In Phil’s view, small pieces of
text are generated in a fairly simple, but incredibly powerful way, through the
execution of probabilistic network. Phil learns the parameters of this network by
examining many examples of small pieces of text.” Exhibit T, page 1 (emphasis
added).

c. “Phil considers the important information in a piece of text to be the words (and
compounds) used in the text.” Exhibit T, page 1.
d. “What this means is that Phil simplifies the analysis of text by not considering the
order of the words in the text . . . . This simplification means that Phil treats
segments of text as a set of terminals.” Exhibit T, page 2 (emphasis added).
e. “Phil’s concepts are supposed to model the ideas in a person’s mind before they
generate text.” Exhibit T, page 2 (emphasis added).
f. “These links imply that when a user thinks of once concept, they are likely to think of
another concept or write another terminal afterwards.” Exhibit T, page 2 (emphasis
added).
g. Much like the synapses in the human brain allowing neurons to fire at cells, Google
states the following, “We will often say that the node is ‘active’ or has ‘fired’ to
imply this. For concepts, firing means that the idea of that concept is active, and is
able to fire terminals. For terminals, the idea of firing is that the terminals exist in the
text to be generated.” Exhibit T, page 2.
h. “The system we have built learns the intermediate concepts, the links and the link
weights—in order to explain the co-occurrence of words and compounds in small
pieces of text.” Exhibit T, page 3.
i. “At this point, we have gone over how an existing Phil model could be used to
generate text. We have not detailed a couple of the most important aspects of this
work: (1) how Phil is learned 2) How Phil is used to estimate the concepts present in
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text 3) How Phil is used in practical situations.” Exhibit T, page 5.
j. “For this reason, the first implementation of Phil, which we will be detailing here
uses “query sessions” from the Google search engine as its small pieces of text.”
Exhibit T, pages 5-6.
k. “We have also implemented and run Phil on web pages and other sources of text, but
for the purposes of making this explanation more concrete, we focus on the analysis
of query sessions.” Exhibit T, page 6 (emphasis added).
l. Google even tracks users’ session with Phil, “To be more precise, we define a query
session (also referred to as a user session or a session) as the set of words used by a
single user on Google for a single day. Often users will search for related material,
issuing several queries in a row about a particular topic.” Exhibit T, page 6
(emphasis added).
m. PHIL is built upon each new piece of data, “Now, for each piece of text (user
session) we replicate the entire model, creating a local network. Exhibit T, page 6
(emphasis added).
n. “User sessions are stored as one or more files in the filesystem. Their format is such
that a lexicon lookup has already transformed each recognized word into a unique
integer, which is its terminal_id.” Exhibit T, page 21.
o. “We have been discussing Phil in the context of query sessions. However, as pointed
out at the beginning of the document, Phil can be run on any source of text, such as
web documents.” Exhibit T, page 27.
p. “One interesting technique we have developed is in training Phil on one source of
data, while applying it on another source.” Exhibit T, page 27.
92.

On April 9, 2005, Google’s Ruchira S. Datta described PHIL as follows:
Understanding the Meaning of Text
A text is a bag of words, such as a webpage.
The person who created the text had certain concepts in mind.
To understand the meaning of the text, we want to model the concepts.
Model them by their effects:
when one thinks of a concept, one
• writes some words
• thinks of other concepts

See Exhibit U (emphasis added). As to how Google teaches or “learns” the PHIL model, Google’s
Ruchira S. Datta described it as, “We learn the Phil model from a large number of training texts. For
each text, we replicate the whole Phil model into a local network.” See Exhibit U. As such, PHIL
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becomes a newer version each time it is learned.
93.

Upon information and belief, Google intercepts, acquires, and uses the content of

Plaintiff’s and Class Members’ electronic communications to create one or more “stopword” lists in the
functionality of one or more artificial intelligence or probabilistic semantic learning system(s), one
implementation of which is as described in United States Patent Number US 7,409,383 B1. See
Exhibit V. Such systems are used within Google beyond the Service of Gmail.
94.

Google intercepts, acquires, and uses the content of Plaintiff’s and Class Members’

electronic communications to expand the existing spam filter components for use in POSTINI®,
Google’s proprietary software which it sells to third parties. Importantly, the POSTINI services sold to
third parties is only as good as the massive amounts of data acquired in order to create and update the
system. Plaintiff’s and Class Member’s email afford Google that data for it to then build its product
and sell beyond the Service of Gmail.
95.

Google intercepts, acquires, and uses the content of Plaintiff’s and Class Members’

electronic communications to improve the functionality of the Google search engine.
96.

Google intercepts, acquires, and uses the content of Plaintiff’s and Class Members’

electronic communications to increase the minimum bid amounts for keywords in the Adwords system,
by counting keyword content extracted from intercepted emails as an “occurrence” of a keyword.
97.

Google intercepts, acquires, and uses the content of Plaintiff’s and Class Members’

electronic communications to increase the net revenue generated by the Adwords program by lowering
Google’s “traffic acquisition cost” as defined by Google on page 32 of its 10K filed with the Securities
Exchange Commission for the year ended December 31, 2010. This is so because Google does not
compensate its email customers the way it compensates its AdSense program participants.
98.

Google intercepts, acquires, and uses the content of Plaintiff’s and Class Members’

electronic communications to rank advertisements based upon concepts and meaning in lieu of simply
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relying upon purchased “keywords” bought through its AdWords program.
99.

Google uses the intercepted content of Plaintiff’s and Class Member’s electronic

communications for other purposes beyond targeted advertising to users and the Service of Gmail.
100. For its interception and use of the content of email, Google uses the same or similar
device(s) to acquire the content of Plaintiff’s and Class Members’ email as it does for its targeted
advertisement placement in Gmail. Google also uses these and other devices to acquire the content
from Plaintiff’s and Class Members’ emails and for Google’s use beyond targeted advertising and the
Service of Gmail.
101. Google’s interception and use of the content of Plaintiff’s and Class Members’ electronic
communications is not an activity which is a necessary incident to the rendition of Gmail or to the
protection of the rights or property of Google in providing Gmail.
102. Google’s interception and use of content of electronic communications from Plaintiff
and Class Members is not within the ordinary course of business of an electronic communication
service.
103. No party to Plaintiff’s and Class Members’ email to Gmail users or to @cableone.net
users has consented to Google’s interception or use of the content of Plaintiff’s and Class Members’
electronic communications as made the basis of this suit.
Gmail Users Do Not Consent To Google Intercepting And Using Email Content;
Cable One Web Mail Users Do Not Consent To Google Intercepting And Using Email Content
104. Google drafted the terms and is the author of its “Terms of Service,” “Gmail Legal
Notices,” “Program Polices,” “Privacy Policy,” and “Google Apps Terms of Service.”
105. In its Google Apps Terms of Service, Google expressly limits its access to “any Content”
within the @cableone.net emails to only those instances if Google is “required to do so by law or in a
good faith belief that such access” is “reasonably necessary” to (a) satisfy any applicable law,
regulation, legal process or enforceable government request, (b) enforce the Terms of Service,
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including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud,
security or technical issues (including, without limitation, the filtering of spam), or (d) protect against
imminent harm to the rights, property or safety of Google, its uses or the public as required or
permitted by law.

See Exhibit S.

No consent from @cablone.net users is sought elsewhere or

provided.
106. The Google “Gmail Program Policies” (Exhibit G) do not mention the scanning,
interception, or use of content of email for targeted advertising or for any purpose.
107. By agreeing to the terms of the “Gmail Program Policy,” a user of Gmail does not
consent to the interception and use of Plaintiff’s and Class Members’ electronic communications.
108. The Google “Privacy Policy” (Exhibit H) does not mention the scanning, interception,
acquisition or use of content of email for targeted advertising or any purpose.
109. In the Google “Privacy Policy,” Google expressly limits the information it collects from
Gmail users to the following: (1) personal information (specifically defined) provided by the user when
the user signs up for a Google Account, (2) information derived from the placement of cookies on the
user’s computer or device, (3) log information, (4) user communications directed at Google, (5)
personal information (specifically defined) provided from affiliated Google Services or other sites, (6)
information from third party applications, (7) location data from location-enabled services, and (8)
unique application numbers from Google Toolbar. See Exhibit H, “Information we collect and how we
use it.” Google omits from any of these categories content, meaning, or other textual information
collected from incoming email.
110. By agreeing to the terms of the “Privacy Policy,” a user of Gmail does not consent to the
interception and use of [e-mail] users’ electronic communications for any purpose.
111. Paragraph 7.1 of the “Terms of Service” refers the Gmail user to “Google’s privacy
policy,” which can be found at a link on the web-page http://www.google.com/privacy.html. See
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Exhibit D, ¶ 7.1. As Google acknowledges in the controlling Terms of Service, this privacy policy is in
regard to Google’s treatment of only the user’s “personal information.”
112. Paragraph 7.1 of the “Terms of Service” does not refer the user to any document other
than the “privacy policy.”
113. While the location for the user’s finding of the privacy policy is identified at
http://www.google.com/privacy.html and is entitled the “Privacy Center,” neither the “Privacy Center”
nor the various hyperlinks identified on that particular page are incorporated into the “Privacy Policy”
or the other terms to which the user must agree. See Exhibit D.
114. The information and the hyperlinks found on the “Privacy Center” webpage do not
mention the word “Gmail,” and from that page a user is not given any indication that any hyperlink
might contain additional information related to Gmail.
115. Paragraph 7.2 of the “Terms of Service” states that the user agrees to the use of “your
data in accordance with Google’s privacy policies.” See Exhibit D, ¶ 7.2. The only privacy “policies”
a viewer is directed to are those in the aforementioned “Privacy Policy.” No other links are offered to
take potential users to an actual policy other than the “Privacy Policy.”
116. Paragraph 7.2 of the “Terms of Service” does not ask and does not require the user to
agree to Google’s use of any other person’s data prior to the receipt of that data by the Gmail user.
117. Paragraph 7.2 does not ask and does require the user to consent to Google’s interception
and use of any other person’s data or communications.
118. At ¶ 8.1 of the “Terms of Service,” Google places responsibility for content to which a
user may have access on the originator of the content. See Exhibit D, ¶ 8.1.
119.

At ¶ 8.2 of the “Terms of Service,” Google notifies the user that the content presented as

part of the services may be owned or protected by a third party, and the user may do nothing with that
content “unless you have been specifically told that you may do so by Google or by the owners of that
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Content, in a separate agreement.” See Exhibit D, ¶ 8.2 (emphasis added).
120. At ¶ 8.3 of the “Terms of Service,” Google states:
Google reserves the right (but shall have no obligation) to pre-screen, review, flag, filter,
modify, refuse or remove any or all Content from any Service. For some Services,
Google may provide tools to filter out explicit sexual content. These tools include the
SafeSearch preference settings (see http://www.google.com/help/cutomoze.html#safe).
In addition, there are commercially available services and software to limit access to
material that you may find objectionable.
See Exhibit D, ¶ 8.3.
121. At ¶ 8.4 of the “Terms of Service,” Google warns users that they may be exposed to
content that they find “offensive, indecent or objectionable and that, in this respect, you use the
Services at your own risk.” See Exhibit D, ¶ 8.4.
122. At ¶ 8.5 of the “Terms of Service,” Google places sole responsibility on the user for any
content created, transmitted, or displayed by user while using any of the services and for the
consequences of the user’s actions. See Exhibit D, ¶ 8.5.
123. The first sentence of ¶ 8.3 of the “Terms of Service,” when viewed in the context of the
entirety of Section 8 and the remaining sentences within ¶ 8.3, is limited to Google’s reservation of
rights to protect its services and users. This meaning is also evidenced by the Google Apps Terms of
Service which places the language, “Google reserves the right, but shall have no obligation, to
prescreen, flag, filter, refuse, modify or move any Content available via Google services,” within the
section “Appropriate Conduct,” clearly meaning Google can protect its services—not acquire content
from private conversation.
124. The words “use,” “use of Content,” “add,” or “add to Content” or words of similar
meaning are not stated in the ¶ 8.3.
125. No wording in ¶ 8.3 advises users or seeks the consent of users for Google’s interception
of Plaintiff’s and Class Members’ email.
126. No wording in ¶ 8.3 advises users or seeks the consent of users for Google’s use of the
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content of Plaintiff’s and Class Members’ email that have been intercepted.
127. When a user views the “Terms of Service” webpage, a link called “Terms of Service
Highlights” appears in the left column. See Exhibit N. Google describes the “highlights” as providing
users with the “basics” or a “summary” of the Terms of Service. See Exhibit N. In discussing the
“highlights” of Google’s “Terms of Service,” and in particular the Section 8 highlights regarding
dealing with Content, Google states:
About your content . . . .
•

Content on our services usually isn’t ours. We may not monitor what we host or
link to, although in some limited case we might. Don’t be surprised if you see
something you don’t like. You can always tell us about it or stop looking.

See Exhibit N, ¶ “About your Content” (emphasis added).
128. At Exhibit N, when Google states, “We may not monitor what we host or link to,
although in some limited case we might,” Google is summarizing the first sentence of ¶ 8.3 of the
“Terms of Service.”
129. The words “pre-screen,” “review,” “flag,” “filter,” “modify,” “refuse,” and “remove” are
ambiguous in the context of ¶ 8.3 of the Terms of Service, Section 8 of the Terms of Service, the
“Terms of Service,” the “The Terms of Service Highlights,” the “Gmail Legal Notices,” the “ Program
Policies,” and the “Privacy Policy” as to whether the definition of these words include the acquisition
and use of content of electronic communication as made the basis of this suit.
130. Paragraph 17.1 of the “Terms of Service” advises users that “Some of the Services are
supported by advertising revenue and may display advertisements and promotions.” See Exhibit D, ¶
17.1 (emphasis added). Google does not refer to Gmail as a service to which this provision is
applicable.
131. Paragraph 17.1 of the “Terms of Service” further provides, “These advertisements may
be targeted to the content information stored on the Services, queries made through the Service or other
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information.” See Exhibit D, ¶ 17.1 (emphasis added). Google does not refer to Gmail as a service to
which this provision is applicable.
132. At ¶ 17.1 in the “Terms of Service,” Google does not advise the user how the “content”
is “targeted.”
133. At ¶ 17.1 in the “Terms of Service,” Google does not advise the user that “content” may
be from a [e-mail] user.
134. At ¶ 17.1 in the “Terms of Service,” Google does not use in ¶ 17.1 the capitalized word
“Content” as defined in ¶ 8.1 and used throughout the “Terms of Service,” thereby excluding the data
or content of others.
135. Plaintiff’s and the Class Members’ electronic communications sent to @gmail.com users
are not matters stored on Google’s Gmail.
136. Plaintiff’s and the Class Members’ electronic communications sent to @gmail.com users
are not queries through Gmail or other information.
137. In the context of Gmail, the language, “These advertisements may be targeted to the
content information stored on the Services, queries made through the Service or other information,” is a
false statement.
138. The language of ¶ 17.1 in the “Terms of Service” is ambiguous in the context of the
“Terms of Service,” the “Gmail Legal Notices,” “The Program Policies,” and the “Privacy Policy” as to
whether the definition of the words in ¶ 17.1 include the acquisition and use of content of electronic
communication as made the basis of this suit.
139. Paragraph 17.3 of the “Terms of Service” provides, “In consideration for Google
granting you access to and use of the Services, you agree that Google may place such advertising on
the Services.” See Exhibit D, ¶ 17.3. Paragraph 17.3 only allows Google to place advertisements on
the unidentified services; it does not address or solicit consent to the interception and use of non25

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@gmail.com users’ electronic communications as made the basis of this suit.
140. By agreeing to the terms of the “Terms of Service,” a user of Gmail does not consent to
the interception and use of [e-mail] users’ electronic communications as made the basis of this
suit.
141. Pursuant to ¶ 1.5 of the “Terms of Service,” the Additional Terms or Legal Notices for a
particular Service, like Gmail, take precedence over any term within the “Terms of Service.” See
Exhibit D, ¶ 1.5.
142. The “Gmail Legal Notices” specifically states, “We will not use any of your content for
any purpose except to provide you with the Service.” See Exhibit F.
143. The electronic communication service known as Gmail is the only applicable Google
“Service” within the “Gmail Legal Notices.”
144. The Gmail Legal Notices does not operate to obtain consent from Gmail users for the
interception and use of electronic communications. The Gmail Legal Notices is Google’s affirmative
and contractual obligation to the Gmail user.
145. Advertising is not the applicable Google “Service” within the “Gmail Legal Notices.”
146. Advertising is not a Google “Service” to Gmail users.
147. Advertising is not a service within Gmail.
148. Advertising in other Google services is not a Google “Service” to Gmail users.
149. When a user subscribes to Gmail, targeted advertising is not mentioned as a service in
the Gmail Terms of Service, Program Policies, and Privacy Policies.
150. On the Google web-page, “What is Gmail?” advertising is not mentioned as a service
within Gmail. See Exhibit O.
151. On the Google web-page, “Google’s approach to email, Top 10 reasons to use Gmail,”
advertising is not mentioned as a “reason” to use Gmail. See Exhibit B.
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152. Paragraph 17.1 of the “Terms of Service” distinguishes “Services” from advertising
revenues which pay for the “Services.” See Exhibit D.
153. Paragraph 17.3’s specific request for the user to agree to the placement of
advertisements on Services evidences that advertisements are not “Services.”
154. Paragraph 17.3’s specific request for the user to agree to the placement of advertisement
on Services evidences that advertisements are not part of any “Service.”
155. If advertisements, and in particular targeted advertisements based upon the content of
Plaintiff’s and Class Members’ email, were a part of the Services offered by Google, the inclusion of ¶
17.3 in the “Terms of Service” would be unnecessary.
156. Paragraphs 7.1, 7.2, 8.3, 17.1, and 17.3 are in contradiction with the “Additional Terms”
entitled “Gmail Legal Notices” and are invalid to the extent they purport to allow for the interception
and use of the content of Plaintiff’s and Class Members’ email.
157. Paragraphs 7.1, 7.2, 8.3, 17.1, and 17.3 of the “Terms of Service” and “Gmail Legal
Notices” are silent with regard to the interception and use of the content of incoming Plaintiff’s and
Class Members’ email.
158. Paragraphs 7.1, 7.2, 8.3, 17.1 and 17.3 of the “Terms of Service” and “Gmail Legal
Notices” are ambiguous with regard to consent for the interception and use of the content of incoming
Plaintiff’s and Class Members’ email.
159. Previously identified Exhibit J, entitled “Advertising and Privacy,” is a web-page from a
link in the “Privacy Center” and listed under “Product Information.” Google did not incorporate this
webpage into any agreement made by the user for a Gmail account.
160.

In the next to last section, entitled, “What information does Google use to serve ads on

Gmail?” Google states:
Google scans the text of Gmail messages in order to filter spam and detect
viruses. The Gmail filtering system also scans for keywords in users’ emails
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which are then used to match and serve ads. The whole process is automated and
involves no humans matching ads to Gmail content.
See Exhibit J, page 4.
161. The sentence, “The Gmail filtering system also scans for keywords in users’ emails
which are then used to match and serve ads,” is a false statement.
162. The sentence, “The whole process is automated and involves no humans matching ads to
Gmail content,” is a false statement.
163. Further, Plaintiff’s and Class Members’ emails are not “users’ emails.”
164. The language in Exhibit J is in contradiction with the “Additional Terms” entitled
“Gmail Legal Notices” and is invalid to the extent it purports to notify the user of any interception and
use of the content of Plaintiff’s and Class Members’ email.
165. The language of Exhibit J is ambiguous with regard to consent or notice of the
interception of content of incoming non-Gmail user’s email.
166. On the “Create an Account” screen (Exhibit C), Google states, “With Gmail, you won’t
see blinking banners ads. Instead, we display ads you might find useful that are relevant to the content
of your messages. Learn more.” Exhibit C, “Create an Account,” is not part of any agreement made by
the user regarding a Gmail account.
167. The sentence, “Instead, we display ads you might find useful that are relevant to the
content of your messages,” is a false statement.
168. The phrase, “Learn more” is a hyperlink.
169. Looking at Exhibit C, Google does not identify how the “content” is obtained.
170. Looking at Exhibit C, Google only states the ads are relevant to the content of the user’s
messages.
171. Further, Plaintiff’s and Class Members’ emails are not the “users’” messages.
172. The language in Exhibit C is in contradiction with the “Additional Terms” entitled
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“Gmail Legal Notices” and is invalid to the extent it purports to notify the user of any interception and
use of the content of Plaintiff’s and Class Members’ email.
173. The language of Exhibit C is ambiguous with regard to consent or notice of the
interception of content of incoming non-Gmail user’s email.
174. By clicking on the hyperlink, “Learn more,” on Exhibit C, the applicant is taken to a
webpage entitled, “Ads in Gmail and your personal data.” See Exhibit P. Google did not incorporate
the webpage attached as Exhibit P and entitled, “Ads in Gmail and your personal data,” into any
agreement made by the user for a Gmail account.
175. At Exhibit P, “Ads in Gmail and your personal data,” Google states, “In Gmail, ads are
related to the content of your messages.” This is a false statement. Google further states, “Ad targeting
in Gmail is fully automated, and no humans read your email in order to target advertisements or related
information.” See Exhibit P. This is also a false statement.
176. Google does not identify how the content is obtained.
177. Further, at Exhibit P, Google only states the advertisements are relevant to the user’s
messages and the user’s emails.
178. Plaintiff’s and Class Members’ emails are not the users’ messages or the users’ email.
179. The language in Exhibit P is in contradiction with the “Additional Terms” entitled
“Gmail Legal Notices” and is invalid to the extent it purports to notify the user of any interception and
use of the content of Plaintiff’s and Class Members’ email.
180. The language of Exhibit P is ambiguous with regard to consent or notice of the
interception of incoming electronic communications.
181. Gmail users do not consent to the interception of incoming electronic communications
for the acquisition of content.
182. Gmail users do not consent to the use of the content of incoming electronic
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communications.
183. Neither Plaintiff nor the Class Members have consented to Google intercepting and
using the content of their electronic communications.
Targeted Advertising Based Upon Intercepted Content Of Email And The
Other Uses Google Makes of Plaintiff’s And Class Members’ Email Are Not
(1) Necessary For The Rendition Of The Service Of Gmail Or (2) For The
Protection Of Google’s Rights And Property, And
Are Not In The Ordinary Course Of Business Of
An Electronic Communication Service
184. Pursuant to 28 U.S.C. § 2510(15), an “electronic communication service” means any
service which provides to users thereof the ability to send and receive electronic communications.
185. “Gmail” is an “electronic communication service” (as defined by 28 U.S.C. § 2510(15)).
186. A Gmail account holder who sends and receives email through Gmail is a “user”
pursuant to 28 U.S.C. § 2510(13).
187. A Gmail “user” (as defined by 28 U.S.C. § 2510(13)) receives Gmail through a Gmail
account and through no other service of Google.
188. Emails sent and received by Gmail account holders through Gmail are “electronic
communications” (as defined by 28 U.S.C. § 2510(12).
189. Google’s acquisition and use of content from Plaintiff’s and Class Members’ email is not
necessary incident to the ability to send or receive email or to operate the electronic communication
service known as Gmail.
190. Google has the technical capacity to offer Gmail without intercepting and using the
content of Plaintiff’s and Class Members’ email.
191. Google’s acquisition and use of content from Plaintiff’s and Class Members’ electronic
communications is not necessary incident to the protection of the rights or property of the provider of
that service.
192. The industry standard for webmail electronic communication services does not include
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the interception and use of the content of Plaintiff’s and Class Members’ email as Google performs on
these electronic communications.
193. The ordinary course of business within the industry for webmail electronic
communication services for the ability to send and receive electronic communications does not include
the interception of content of an electronic communication and the use of its content as Google
performs on Plaintiff’s and Class Members’ email.
194. Google’s services that are not related to the ability to send and receive electronic
communications are not electronic communication services.
195. Google’s targeted advertising and other uses of Plaintiff’s and Class Members’ email
content are not an electronic communication service as defined by 18 U.S.C. § 2510(15).
196. Google’s interception and use of content of electronic communications from Plaintiff
and the Class Members is not within the ordinary course of business of an electronic communication
service.
Plaintiff Has Sent And Continues To Send Email To Gmail Users
197. Within the Class Period, Plaintiff has sent and continues to send e-mails to Gmail
account holders and @cableone.net account holders from his [e-mail] account.
198. Plaintiff’s emails are electronic communications.
199. At the time Plaintiff sent the emails to @gmail.com account holders and @cableone.net
account holders, Plaintiff did so from his cableone.net account both prior to and after November 16,
2010.
200. Google intentionally intercepted and used the content of Plaintiff’s e-mails to
@gmail.com account holders and @cableone.net account holders for Google’s commercial gain.
201. In one specific instance and based solely on the content of Plaintiff’s email, when
Plaintiff’s email was received by the @gmail.com account holder, links to competing businesses were
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provided for viewing by the @gmail.com account holder.
202. Plaintiff did not consent to Google’s intentional interception and use of the content of
Plaintiff’s emails to @gmail.com account holders or @cableone.net account holders for any purpose.
203. Google’s intentional interception and use of the content of Plaintiff’s emails or the use of
the information derived thereof provided a financial gain to Google.
204. Google did not compensate Plaintiff for the interception and use of the content of
Plaintiff’s email or the use of the content of Plaintiff’s email.
205. Google profited from and continues to profit from the content of Plaintiff’s and Class
Members’ email.
206. Google’s storage of Gmail user’s data, including received, sent, and unsent email, to
include any and all backup or other uses by Google of that data, allows Google the ability to determine
the number of [e-mail] users’ email sent to Gmail users for the two years prior to this suit and
continuing.
207. Through Google’s storage of Gmail user’s email, to include any all backup or other uses
by Google of that email, Google can obtain the email addresses of [e-mail] user’s email sent
to Gmail users for the two years prior to this suit and continuing.
208. Plaintiff’s and Class Members’ emails sent to @gmail.com and @cablone.net users can
be identified by the unique Message-ID required of every email pursuant to RFC 2822—Internet
Message Format.
CLASS ALLEGATIONS
209. Plaintiff brings this nationwide class action, pursuant to Rule 23 of the Federal Rules of
Civil Procedure, individually and on behalf of all members of the following Class. The Class consists
of:
All natural persons located within the United States who sent emails from a [e-mail] account email addresses to an @gmail.com account e-mail address
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from within two years before the filing of this action up through and including the
date of the judgment in this case;
AND
All natural persons located with the United States who sent emails from
[e-mail] account email addresses to an @cablone.net account e-mail
address serviced by Google from within two years before the filing of this action
through and including the date of the judgment in this case.
Excluded from the class are the following individuals and/or entities:
a. Any and all federal, state, or local governments, including but not limited to their
department, agencies, divisions, bureaus, boards, sections, groups, counsels, and/or
subdivisions;
b. Individuals, if any, who timely opt out of this proceeding using the correct protocol
for opting out;
c. Current or former employees of Google;
d. Entities;
e. Individuals, if any, who seek actual damages and profits from Google;
f. Individuals, if any, who have previously settled or compromised claims(s) as
identified herein for the class; and
g. Any currently sitting federal judge and/or person within the third degree of
consanguinity to any federal judge.
A. Numerosity
210. The Class is so numerous that joinder of all members is impracticable.
211. The number of separate individuals who sent emails from a [e-mail] account
email addresses to an @gmail.com account email address from within two years before the filing of
this action is excess of 100 persons.
212. The number of separate individuals who sent emails from [e-mail] account
email addresses to an @cableone.net account email address serviced by Google from within two years
before the filing of this action is in excess of 100 persons.
213.

Upon information and belief, the number of Gmail account holders is more than 100
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million users. Correspondingly, Plaintiff alleges the numbers for the Class are in the millions.
B. Commonality
214. There are questions of law or fact common to the class. These questions include, but are
not limited to, the following:
a. Whether Google intentionally intercepted, endeavored to intercept, or procured any
other person to intercept or endeavor to intercept Plaintiff’s and Class Members’
electronic communications to @gmail.com account recipients and @cableone.net
account recipients serviced by Google? Inclusive in this common question are the
common questions regarding the elements of 18 U.S.C. § 2511(1)(a) and § 2520
based upon the statutory definitions:
•

Whether Google acted intentionally?

•

Whether Google acquired any content of Plaintiff’s and Class members
email?

•

Whether that content amounted to any information concerning the
substance, purport, or meaning of Plaintiff’s and Class Members’ emails?

•

Whether Plaintiff’s and Class Members’ emails to the @gmail.com
account recipients and @cableone.net recipients were electronic
communications?

•

Whether Google used an electronic, mechanical, or other device, with the
definition of device being statutorily provided?

•

Whether statutory damages against Google should be assessed? and

•

Whether injunctive and declaratory relief against Google should be
issued?

b. Whether Google intentionally used, or endeavored to use, the contents of Plaintiff’s
and Class Members’ electronic communications to @gmail.com account recipients
and @cablone.net account recipients serviced by Google knowing or having reason
to know that the information was obtained through the interception of the electronic
communication in violation of 28 U.S.C. § 2511(1)? Inclusive in this common
question are the common questions regarding the elements of 18 U.S.C. § 2511(1)(d)
and § 2520 and based upon the statutory definitions:
•

Whether Google acted intentionally?

•

Whether Google acquired any content of Plaintiff’s and Class members
email?
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•

Whether that content amounted to any information concerning the
substance, purport, or meaning of Plaintiff’s and Class Members’ emails?

•

Whether Plaintiff’s and Class Members’ emails to the @gmail.com
account recipients and @cableone.net recipients were electronic
communications?

•

Whether Google used an electronic, mechanical, or other device, with the
definition of device being statutorily provided?

•

Whether Google used the content of Plaintiff’s and Class Members’
email?

•

Whether statutory damages against Google should be assessed? and

•

Whether injunctive and declaratory relief against Google should be
issued?
C. Typicality

215. Plaintiff’s claims are typical of the claims of the Class in that Plaintiff and the Class sent
emails to @gmail.com and @cablone.net account holders, Google intercepted and acquired the emails’
contents, Google used or endeavored to use the contents of the Plaintiff’s the Class Members’ emails,
the users of Gmail did not consent to the interception and uses made the basis of this suit, neither
Plaintiff nor the Class consented to Google’s interception and uses of content made the basis of this
suit, Plaintiff and the Class Members are entitled to declaratory relief, statutory damages, and
injunctive relief due to Google’s conduct.
D. Adequacy of Representation
216. Plaintiff will fairly and adequately protect the interests of the Class. Plaintiff’s interests
do not conflict with the interests of the Class members. Furthermore, Plaintiff has retained competent
counsel experienced in class action litigation. Plaintiff’s counsel will fairly and adequately protect and
represent the interests of the Class.
217. Plaintiff asserts that pursuant to Fed. R. Civ. P. 23(b)(3), questions of law or fact
common to the Class Members predominate over any questions affecting only individual members, and
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that a class action is superior to other available methods for fairly and efficiently adjudicating the
controversy.
CAUSE OF ACTION
VIOLATIONS OF 18 U.S.C. §§ 2510 et seq
218. Google, as a corporation, is a “person” pursuant to 18 U.S.C. § 2510(6).
219. Throughout the entirety of the conduct upon which this suit is brought, Google’s actions
were/are intentional.
220. Throughout the entirety of the conduct upon which this suit is brought, Google’s actions
affect interstate commerce.
221. Pursuant to 18 U.S.C. § 2511(1)(a), Google intentionally intercepted, intercepts, or
endeavored or endeavors to intercept the electronic communications of Plaintiff’s email and Class
members’ emails based on the following:
•

Google acquired(s) the content of Plaintiff’s and Class Members’
email;

•

Plaintiff’s and Class
communications;

•

Google utilized(s) one or more devices composing of an
electronic, mechanical or other device or apparatus to intercept
Plaintiff’s and Class Members’ electronic communications;

•

Google’s intercepting devices are not a telephone or telegraph
instrument, are not telephone or telegraph equipment, are not a
telephone or telegraph facility, or are not any component thereof;

•

Google does not furnish the devices to Gmail users and users do
not use the devices for connection to the facilities;

•

The devices are not used by Google, if operating as an electronic
communication service, in the ordinary course of its business as a
provider of an electronic communication service;

•

Google’s interception of Plaintiff’s and Class Members’ electronic
communications for undisclosed purposes, for the purpose of
delivering targeted advertisements, for purposes beyond the
Service of Gmail, in violation of its user agreements, in violation
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emails

are

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of its contracts with third parties, and in violation of its statements
to users are not within the ordinary course of business of a
provider of an electronic communication service
222. Pursuant to 18 U.S.C. § 2511(1)(d), Google intentionally used, uses, or endeavored or
endeavors to use the contents of Plaintiff’s and Class Members’ electronic communications knowing or
having reason to know that the information was obtained through the interception of the electronic
communication in violation of 18 U.S.S. § 2511(1)(a).
223. Google’s interception of and use of the contents of Plaintiff’s and Class Members’
electronic communications were not performed by an employee while engaged in any activity which is
necessary incident to the rendition of Gmail or to the protection of the rights or property of the Google.
224. Google’s advertising and other uses of Plaintiff’s and Class Members’ emails are not a
service of an electronic communication service as defined by 18 U.S.C. § 2510(15).
225. Google’s advertising and other uses of Plaintiff’s and Class Members’ emails are not a
service of a provider of an electronic communication service as defined by 18 U.S.C. § 2510(15).
226. No party to the electronic communications sent by Plaintiff and the Class Members as
made the basis of this suit consented to Google’s interception or use of the contents of the electronic
communications.
227.

As a result of Google’s violations of § 2511, pursuant to § 2520, Plaintiff and the Class

are entitled to:
a. Preliminary and permanent injunctive relief to halt Google’s violations;
b. Appropriate declaratory relief;
c. For Plaintiff and each Class members, the greater of $100 a day for each day of
violation or $10,000 whichever is greater; and
d. Reasonable attorneys’ fees and other litigation costs reasonably incurred.
JURY DEMANDED
Pursuant to Federal Rule of Civil Procedure 38, Plaintiff demands a jury on any issue triable of
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right by a jury.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, on behalf of himself and all Class members, requests judgment be
entered against Defendant and that the Court grant the following:
1. An order certifying the Class and appointing Plaintiff and his counsel to represent
the Class;
2. Judgment against the Defendant for Plaintiff’s and the Class’ asserted causes of
action;
3. Appropriate declaratory relief against Defendant;
4. Preliminary and permanent injunctive relief against Defendant;
5. An award of statutory damages to the Plaintiff and the Class, for each, the greater of
$100 a day for each day of violation or $10,000, whichever is greater;
6. An award of reasonable attorneys’ fees and other litigation costs reasonably incurred;
and
7. Any and all other relief to which the Plaintiff and the Class may be entitled.

Respectfully submitted,
/s/ Sean F. Rommel_______
Sean F. Rommel
Tex. Bar No. 24011612
[e-mail]
James C. Wyly
Tex. Bar No. 22100050
[e-mail]
WYLY~ROMMEL, PLLC
2311 Moores Lane
Texarkana, Texas 75503
[phone] (Telephone)
[phone] (Fax)

Chris Travis
Admission by Pro Hac Vice
[e-mail]
Drake Mann
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Texas Bar No. 12929510
[e-mail]
GILL ELROD RAGON OWEN
& SHERMAN, P.A.
425 West Capitol Avenue, Suite 3801
Little Rock, Arkansas 72201
[phone] (Telephone)
[phone] (Fax)

M. Chad Trammell
Tex. Bar No. 20183750
[e-mail]
THE TRAMMELL LAW FIRM, PLLC
418 North State Line Avenue
Texarkana, AR 71854
[phone] (Telephone)
[phone] (Fax)
ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE
I hereby certify that on September 15, 2011, I electronically submitted the foregoing document
with the clerk of the court for the U.S. District Court, Eastern District of Texas, using the electronic
case files system of the court. The electronic case system sent a “Notice of Electronic Filing” to
individuals who have consented in writing to accept this Notice as service of this document by
electronic means. All other counsel of record not deemed to have consented to electronic service were
served with a true and correct copy of the foregoing by first class mail on this date.

/s/ Sean F. Rommel
Sean F. Rommel

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