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Yahoo tries legal pirouettes in court, breaks neck

Evan Schuman | June 3, 2015
One of the company’s arguments: Yahoo Mail customers should notify anyone who emails them that any email they send to the customer could be scanned by Yahoo — presumably including the original email already sent before the customer could warn the sender. And that argument didn’t work?

Yahoo, the once-mighty search-engine company, executed some remarkably graceless legal pirouettes as it tried to defend its invasive email scanning practices -- scanning of emails not sent by Yahoo Mail customers who had signed off on the terms of service, but the emails of people who had sent email to Yahoo users. All to no avail. Last week (May 26), a federal judge approved a class-action lawsuit against Yahoo. But a review of the arguments that Yahoo tried in court is rather entertaining.

A group of consumers who are not subscribers to Yahoo email are suing Yahoo, accusing it of analyzing their emails. Yahoo "extracts keywords from the body of the email, reviews and extracts links and attachments, and classifies the email based on its content," according to the filed lawsuit. "Yahoo also subjects the copied email and extracted information to additional analysis to create targeted advertising for its subscribers, and stores it for later use."

Yahoo's initial position is mildly defendable. To protect users against spam, junk mail and malware, all emails, incoming and outgoing, must be examined. More to the point, to support the free email service, Yahoo says that it needs to charge advertisers and that it can charge them much more if it permits them to send highly targeted messages based on email contents. Hence, Yahoo's position: You want free email? You've got to pay the piper somehow.

The problem is one of consent. People who sign up for free Yahoo email have to consent to the searches in exchange for the free service. But what about people who just happen to email Yahoo customers? That's where the Yahoo case starts to crumble -- but it is fun watching it try to defend it.

In the decision, U.S. District Court Judge Lucy H. Koh undercut the business contention that email analysis is essential to the free service by pointing out that Yahoo forgoes such email analysis "for commercial purposes." She then cited testimony from a Yahoo executive about non-U.S. email efforts. Yahoo "cannot use email to target ads to users without consent from both the sender and receiver in the United Kingdom. Yahoo therefore does not provide targeted advertising to Yahoo Mail subscribers in the United Kingdom."

Then comes Whopper No. 1, which is arguably the most unrealistic condition in any terms-of-service language, which is saying quite a lot. "In its terms of service, Yahoo notifies its subscribers that: 'If you consent to this [Additional Terms of Service] and communicate with non-Yahoo users using the Services, you are responsible for notifying those users about this feature.' According to Plaintiffs, Yahoo 'makes no other effort to obtain the consent of non-subscribers.' Moreover, Yahoo provides no mechanism for non-Yahoo Mail subscribers to opt out of Yahoo's scanning practices."


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