U.S. District Judge Lucy Koh found that Google’s terms of service do not allow them to scan email’s as part of its business model to create user profiles and cater advertisements to users. The decision arose in response to a proposed class action lawsuit. The plaintiffs argued that Google “intercepts” emails, scanning them to deliver appropriate ads for the user which is a violation of the wiretapping provisions under the Electronic Communication Privacy Act.
A Washington Post article by Timothy B. Lee finds the ruling unfair, and believes it may ultimately place unnecessary legal liability on online businesses.
When Congress enacted the ECPA they excluded activities that part of service providers “ordinary course of business” from the definition of wiretapping. Google has argued that its advertising system is part of this normal course.
Judge Koh ruled that only activities “instrumental to Google’s ability to transmit emails” are excluded from the definition of wiretapping. Scanning emails for spam, optimizing emails for search and organizing them into categories are extra features which are not considered “instrumental.” Furthermore, Google was scanning emails sent to Gmail accounts from non-Gmail users, and this interception struck a chord with Judge Koh. Google contends that all parties consent to their email being scanned when an email communication occurs.
Jon Simpson, the privacy director for Consumer Watchdog of Santa Monica, California hailed the decision, stating “the ruling means federal and state wiretap laws apply to the internet. It’s a tremendous victory for online privacy. Companies like Google can’t simply do whatever they want with our data and emails.”
Google is looking for an appeal, and maintains the argument that users have already consented to their emails being intercepted when they agree to the end-user agreement. Koh does not believe the agreement clearly spell out what users are agreeing to. The judge states that the part of the agreement which reads “advertisements may be targeted to the content of information stored on the services, does not imply Google will be scanning emails, just that they have the capacity to do so. Secondly, she states that wiretapping law “protects communications in transit, as distinguished from communications that are stored.”Timothy B. Lee exclaims the ruling is a “conceptual mess.” Koh makes an incoherent distinction between emails in transit and in storage. All emails in transit have to be stored on Google’s servers for the delivery to be made. “It would have been much better for her to avoid this entire quagmire by simply ruling that an e-mail provider scanning its customers’ messages, for spam filtering, search indexing, ad targeting or any other purpose, isn’t wiretapping.”The lawsuit will likely move forward, when Koh grants permission for the interlocutory appeal. It is likely that the appeal will be granted rather than going to trial first because of the significance of the legal issue in question.