If the B.C. lawsuit against Google for its data mining of Gmail is successful, it has the potential to make anti-spam and anti-virus software that scans emails illegal.

Similar cases have been launched in the United States, where Eric Goldman, a professor at Santa Clara University School of Law and director of the High Tech Law Institute, has characterized them as “are-you-kidding-me” lawsuits.

“If electronic scrutiny of private email constitutes an interception then all anti-spam software violates that as well … the same probably with virus checkers,” Goldman said when asked about the lawsuit filed Thursday in BC Supreme Court.

A Sunshine Coast man is seeking damages of $500 per email and an injunction that would stop Google from intercepting and using personal information it collects by scanning emails sent through Gmail. The statement of claim alleges that Google is violating the Privacy Act, infringing copyright and breaching the Competition Act.

“In the U.S., I consider similar lawsuits to be dead on arrival,” Goldman said. “They have no merit. I can’t speak to Canadian laws.”

While Goldman made it clear he can’t comment on B.C. or Canadian laws, he raised issues that could be applicable on both sides of the border. He said one issue for the courts to determine is whether an automated process of scanning emails amounts to a violation of privacy.

“Google isn’t manually reading these, a machine is reading them,” he said. “It is about whether the law cares if a machine has scrutinized private communications and if that scrutiny constitutes a violation of privacy.”

A second issue Goldman said arises in the U.S. is the statute of limitations. The practice of serving up ads in Gmail linked to keywords and information gleaned from emails dates back to about 2004. “This has been going on for a long time so to have it come up now is odd,” said Goldman.

The third issue is one of consent, said Goldman, and that can vary with the jurisdiction.

“In the United States, many of the privacy laws will step away if the user consents,” he said.

In the B.C. case, the plaintiff is arguing not as a Gmail user but as a non-Gmail user sending emails to a correspondent’s Gmail address.

Under the U.S. Electronic Communications Privacy Act, if the email recipient consents to the scrutiny, “then the sender has nothing to object about,” Goldman said. In some states, however, second party consent is required — which means both parties have to consent before a communication can be intercepted.

Goldman said he uses Gmail and the ads are not a concern. “Everyone in my circle has moved on a long time ago from this issue,” he said.

gshaw@vancouversun.com