Court Says That Google's Scanning Email Content To Place Ads Could Violate Wiretap Laws

from the really? dept

Plaintiffs have plausibly alleged that Google’s reading of their emails was not within this narrow ordinary course of its business. Specifically, Plaintiffs allege that Google intercepts emails for the purposes of creating user profiles and delivering targeted advertising, which are not instrumental to Google’s ability to transmit emails. The Consolidated Complaint alleges that “Google uses the content of the email messages [Google intercepts] and the derivative data it creates for its own benefit in other Google services unrelated to the service of email or the particular user.” Plaintiffs support their assertion by suggesting that Google’s interceptions of emails for targeting advertising and creating user profiles occurred independently from the rest of the email-delivery system. In fact, according to the Consolidated Complaint, the Gmail system has always had separate processes for spam filtering, antivirus protections, spell checking, language detection, and sorting than the devices that perform alleged interceptions that are challenged in this case. As such, the alleged interception of emails at issue here is both physically and purposively unrelated to Google’s provision of email services. Google’s alleged interceptions are neither instrumental to the provision of email services, nor are they an incidental effect of providing these services. The Court therefore finds that Plaintiffs have plausibly alleged that the interceptions fall outside Google’s ordinary course of business.

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We've discussed before a series of class action cases filed against Google, claiming that Gmail violates various wiretapping laws, because its service scans email contents for the purpose of matching ads to the content of the email. This was a complaint that was raised back when Gmail was first launched, but people appeared to fairly quickly recognize that all that's happening is a computer is scanning the email to match up an attempt at a more relevant ad. People signed up in droves because they don't seem at all bothered by this. No human other than the sender and recipient is seeing the content of the email. Eventually, though, this class action lawsuit was filed, in part arguing thatnever consented to this sort of "invasion." Except it's not an invasion at all. It's just how Google (and others) process email. However, Judge Lucy Koh, has more or less rejected Google's attempt to have the case thrown out This seems like a total misreading of the Wiretap Act. Under this kind of interpretation, all sorts of online services would basically be barred. While it goes into a long discussion, the short version is that the court says that while the Wiretap Act allows for the interception of messages in the course of business, that exception is "narrow" and does not include how Google "intercepts" emails.I honestly don't get this. Google is not "intercepting" the email. It's just having its computers scan to match up ads with it. If that's "interception" and somehow illegal, then wouldn't the same be true of spam and anti-virus detection? All of those things equally involve having a computer scan the contents of an email. Does anyone honestly believe that a spam filter is an illegal wiretap?Either way, I'm sure there will be an appeal, so this case is a long way from being finally decided.

Filed Under: class action, email, scanning, wiretaps

Companies: google