Judge Says Gmail Might Be Breaking The Law

    September 27, 2013
    Chris Crum
    Comments are off for this post.

Google continues to battle a class action lawsuit filed in may, claiming that the company is violating laws when it “opens” and “reads” emails. Earlier this month, Google asked a judge to dismiss the suit, but that didn’t happen.

This week, a judge reportedly found that Google may indeed be violating California wiretapping laws.

As you may know, Gmail scans users’ email messages in order to serve targeted ads. It has always done this, and Google has always been pretty clear about it. The company does not have humans reading emails. It’s all done algorithmically (at least as far as anyone knows).

Gmail has carried on this way for about a decade. Earlier this year, Microsoft in an effort to promote its competing email product, started a campaign playing Google’s “invasion of privacy” up as an issue, as though it was something people did not know about. Perhaps it worked, because the suit was filed a few months later.

Wired has some quotes from the judge:

“Accordingly, the statutory scheme suggests that Congress did not intend to allow electronic communication service providers unlimited leeway to engage in any interception that would benefit their business models, as Google contends. In fact, this statutory provision would be superfluous if the ordinary course of business exception were as broad as Google suggests,” Judge Koh wrote.

“Google further contends that because of the way that email operates, even non-Gmail users knew that their emails would be intercepted, and accordingly that non-Gmail users impliedly consented to the interception. Therefore, Google argues that in all communications, both parties — regardless of whether they are Gmail users — have consented to the reading of emails. The Court rejects Google’s contentions with respect to both explicit and implied consent. Rather, the Court finds that it cannot conclude that any party — Gmail users or non-Gmail users — has consented to Google’s reading of email for the purposes of creating user profiles or providing targeted advertising. Google points to its Terms of Service and Privacy Policies, to which all Gmail and Google Apps users agreed, to contend that these users explicitly consented to the interceptions at issue. The Court finds, however, that those policies did not explicitly notify Plaintiffs that Google would intercept users’ emails for the purposes of creating user profiles or providing targeted advertising.”

They also share the following statement from Google:

Google said in a statement that it was “disappointed” with the ruling and was considering its legal options. “Automated scanning lets us provide Gmail users with security and spam protection, as well as great features like Priority inbox,” the company said.

Google will likely try to appeal, but has to jump through some legal hoops to do so.

Frequent Google critic Consumer Watchdog is thrilled with the judge’s words.

“This is a historic step for holding Internet communications subject to the same privacy laws that exist in the rest of society. The court rightly rejected Google’s tortured logic that you have to accept intrusions of privacy if you want to send email,” said John M. Simpson, Consumer Watchdog’s Privacy Project Director. “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.”

You can read the decison here.

Image: Google

  • http://www.spinnakermarcom.com pgadeyne

    Google also “read” documents going through Google Docs. Last year I started working with a new client, my partner and I tried Google Docs to collaborate, a week later I ad a call from a Google sales person trying to sell me on an adword campaign for that specific client. No more Gmail or Google Docs for us and I am very suspicious of using ant Google product for documents or communication containing privileged information

  • ebswift

    A call from a ‘google salesperson’ who apparently read all your communications and tried to sell some adwords? I’m not convinced. Firstly, a google of such cold calling has info on the cold calls, and it’s not google, it’s a 3rd party company. Secondly, a 3rd party company is being provided by the actual private documents and emails produced by you and your client? Google doesn’t do that, that would be evil. When they ‘scan’ your emails and documents, they sell on keywords, they don’t give the Russian mafia the contents of your private email and gdocs for $5. That would be evil.

    But, anyway, the judge is an idiot. Shut down google’s monetisation of their products and you shut down google, the company who actually provides a great service to most of us. The US justice system might learn a thing or two if google moves their business offshore to avoid the legal minefield that is the US.

    • http://cass-hacks.com Craig Schultz

      The end result need not be that GMail’s current method of monetisation would need to change. The statements from the court could be taken to mean that the problem was that Google was not as clear about what it was doing on the back-end as it maybe should have been.

      “the Court … cannot conclude … Gmail users or non-Gmail users — has consented to Google’s reading of email for the purposes of … .”

      A more clear TOS and a notification on each and every message sent out from GMail that replies will be scanned for Malware and for targeted advertizing purposes would seem to cover the court’s objection.

  • http://www.roycobden.com Roy Cobden

    Bye-bye “free” email & other ad-supported online services?

    Really, I have to sympathize a bit with Google though. I’d liken the Gmail users behind the lawsuit to the type of people who would buy a home next to a busy airport then complain about the noise.

    It’s not just govt & business that need to be more accountable. Joe & Jane Average need to grow up and start being a whole lot more accountable and responsible for their choices and actions.

    Does Gmail needs a really dumbed-down TOS going forward?

    • http://cass-hacks.com Craig Schultz

      “Does Gmail needs a really dumbed-down TOS going forward?”

      Unfortunately it seems the answer is, “yes”.

      Going forward, online companies may find that a point-by-point checking off of each TOS and Privacy Policy clause is necessary to protect themselves legally.

      At this point in time though, one might wonder how many GMail users have ever read either Google’s/GMails privacy policies or TOSs to begin with? Probably a single digit percentage?