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Students Ask Judge to Leave Google Case After Citing His New Job at Facebook

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So how influential are big tech companies? So influential that a federal judge should stop hearing a case about one tech giant because he is about to go work for another.

Well, that’s the view of a lawyer representing hundreds of university students who are suing Google (GOOG) because the company allegedly scanned their email without consent.

The lawyer, Ray Gallo, sent a letter this week to U.S. Magistrate Judge Paul Grewal, suggesting the judge has a conflict of interest because he recently accepted a job at Facebook (FB) .

“We recently learned that you are joining Facebook next month as deputy general counsel in charge of litigation. Congratulations,” says the letter. “[But] a reasonable person might question your impartiality.”

The letter then asks Grewal to consider recusing himself from the case.

It’s hard to say if Gallo is sincere or if this is a publicity tactic. Either way, the letter does draw attention to the case and to the remarkable fact that a tech company just hired a sitting federal judge.

The case itself, if you’re unfamiliar, is about a version of Google’s popular Gmail service that it supplies to colleges. Students at those colleges get email addresses that end with “@berkeley.edu” or “@yale.edu” though the service itself is basically Gmail.

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The reason that these students are suing is because Google allegedly scanned their emails for advertising purposes (which it does with ordinary Gmail) despite saying it wouldn’t do that. The case began with a handful of students at Berkeley, but now it involves hundreds of others because students at Harvard and other institutions added their names.

The lawyer is suing under a law called the Electronic Communications Privacy Act, which lets plaintiffs seek an automatic penalty of $10,000, or $100 for each day a company violates the law, whichever is higher. The point of the law is to forbid companies from intercepting or spying on people’s online communications without their consent.

In the case of Judge Grewal, he would not be ruling on the substance of the case, which is the job of another judge. Instead, Grewal is overseeing procedural parts of the matter, including the process by which Google can protect its confidential information during litigation.

Gallo, the lawyer, is basically saying there’s a risk that Grewal might be overly generous in granting Google’s requests for secrecy since his new employer, Facebook, would also benefit from broad secrecy rulings. (My own two cents is this is silly because it’s unlikely Grewal, a well-respected judge, would carry such a bias. Still, the optics are not great).

Google, declined to comment on the case or on the Gallo letter, which was posted by The Recorder.

Judge Grewal did not reply to a request for comment to his Twitter account.

The student scanning lawsuit comes after several class action lawsuits over email scanning brought by general users of Yahoo (YHOO) email and Gmail, which fizzled out a few years ago.