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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?

Let me see if I've got this straight. Based on one line in an almost-never-read TOS, it expects its free email customers to contact anyone who emails them and to tell them about Yahoo's scanning? Let's set aside for the moment the facts that this is ridiculous and that pretty much no one will ever do it (nor should Yahoo have expected them to). Even if Yahoo's email users did, the damage would already have been done, as that initial message would have already been scanned. Are Yahoo's users supposed to somehow divine every person who might ever email them and proactively tell them about Yahoo's scans?

And even if they possess this magical ability and are willing to use it to help out Yahoo, notification is not the same as consent. Does Yahoo expect its free users to obtain that consent, too? Yahoo expects a lot for its free email.

Then this delightful nugget, to be filed under "Let's use communications to obscure information-sharing": "In 2012, Yahoo's communications department also recommended that it would be 'good to have a quiet blog post on our advertising or privacy blog about several forms of targeting (not just commercial mail) so we can say we have something out there if there is an issue. No one wants to proactively grab the attention of consumers. It's just a way of having something documented.'" (Note to IT: Don't your people understand that emails are preserved and will be subpoenaed? The more embarrassing the reference, the more likely they'll have to defend it in court.)

I've had enough fun thus far. Time for Koh to have some fun. "The gravamen of Yahoo's argument is that once Plaintiffs discovered that their emails to Yahoo subscribers were being intercepted, stored, and used by Yahoo, Plaintiffs then consented to Yahoo's actions by continuing to email Yahoo subscribers. According to Yahoo, because Plaintiffs now know that any emails Plaintiffs send to Yahoo subscribers will be subject to Yahoo's interception and use of those emails, Plaintiffs 'consent' to future interceptions and cannot allege a future injury as required to establish standing for injunctive relief."

What does the judge think of that argument? "Yahoo would put Plaintiffs in a Catch-22 that would essentially preclude injunctive relief altogether. Yahoo would require Plaintiffs to allege both that Plaintiffs, in order to avoid "consenting" to Yahoo's conduct, stopped emailing Yahoo subscribers after discovering Yahoo's alleged wrongful conduct. And that Plaintiffs continued to email Yahoo subscribers so that Plaintiffs allege a real and immediate threat of future injury, i.e., that Yahoo would intercept Plaintiffs' communications in the future. The Court declines to impose an impossible burden on Plaintiffs."


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