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Yahoo says email scanning not surreptitious in eavesdropping class action; No reasonable expectation of privacy

By The Madison County Record | Aug 18, 2015


EAST ST. LOUIS – Yahoo answers a class action complaint of privacy invasion by pleading that no one can call its scanning practices surreptitious.

“Yahoo’s scanning of emails has been the subject of media reports for years,” Peter Herzog of St. Louis wrote on Aug. 17.

He moved to dismiss a suit that Kaylynn Rehberger of Highland filed at U.S. district court in June, alleging violation of the Illinois Eavesdropping Statute.

Rehberger alleged that she didn’t consent to scanning of messages she sent through her provider to Yahoo subscribers.

She sued Yahoo a week after U.S. District Judge Lucy Koh of San Jose, Calif., decided not to certify a national class action on a similar claim.

Rehberger’s lawyer, former Madison County chief judge Ann Callis, proposes a statewide class action for violations since last Dec. 31.

In Yahoo’s motion to dismiss the suit, Herzog argued that Rehberger did not plausibly allege that the scanning was surreptitious as the law requires.

Herzog wrote that she instead alleged that Yahoo disclosed the practice to at least 75 million people, her estimate of the number of Yahoo subscribers.

He inserted a footnote that the actual number far exceeds 75 million.

He attached 14 articles about scanning practices of Yahoo, Google and others.

He wrote that Rehberger did not identify her email provider or state whether she consented to scanning by her provider.

“Any user who has consented to scanning, whether by Google, Microsoft, or his or her own employer, cannot have a reasonable expectation of privacy in an email sent to or received from a Yahoo subscriber,” Herzog wrote.

He wrote that she did not allege that she sent any specific email under circumstances justifying an expectation of privacy.

“She also alleges that she will send emails in the future to Yahoo subscribers from her non-Yahoo email address even though she knows that Yahoo intercepts and scans emails,” he wrote.

He wrote that in March 2014, the Illinois Supreme Court found a previous eavesdropping statute broader than the state Constitution allowed.

He wrote that legislators passed a new statute applying only to surreptitious interception of conversations between persons who reasonably expect privacy.

“The current statute became effective on December 31, 2014, and applies only to conduct occurring on or after that date,” Herzog wrote.

“Plaintiff has limited her allegations accordingly.”

He wrote that her complaint borrowed heavily from the California suit, though the California statute lacks the elements of surreptitious interception and reasonable expectation of privacy.

“Even armed with prior knowledge of the California lawsuit, plaintiff made no attempt to allege any circumstances justifying her alleged expectation of privacy with respect to any specific email,” he wrote.

District Judge Staci Yandle presides over the action.

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