Google Might Want to Rethink Scanning Gmail

Judge rules scans might violate wiretap law

Google may want to rethink delivering targeted ads based on email scans. A federal judge this morning declined Google's request to dismiss a class action lawsuit that alleged Google's scanning of Gmail violates federal and state wiretapping laws.

In a 43-page decision that allows the lawsuit to proceed, Judge Lucy Koh rejected Google's argument that wiretapping laws don't apply to its business and that its privacy policy implies user consent to its scanning practices.

"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," Koh wrote.

Google argued that its privacy policy makes it clear that its users consent to scanning when they agree to its terms of service. But Koh concluded it wasn't sufficient, even though Google said it revised the language and modified its policies in March 2012.

"The new policies are no clearer than their predecessors in establishing consent," Koh wrote. … "The court … finds that a reasonable Gmail user who read the privacy policies would not have necessarily understood that her emails were being intercepted to create user profiles or to provide targeted advertisements."

The case, before the U.S. District Court for the northern district of California, was initially filed in 2010 by several users in California, Maryland, Florida, and Pennsylvania who alleged that Gmail intercepted, read and acquired content for the purpose of sending advertising to the recipient, sender or both.

Privacy advocates called the ruling "a seminal decision" for online consumer privacy. "The ruling will have a lasting impact beyond Google," said Consumer Watchdog, which filed an amicus brief in the case. The decision also doesn't bode well for Yahoo, which also scans email to deliver ads.

Google didn't detail its next legal steps. "We're disappointed in this decision and are considering our options. Automated scanning lets us provide Gmail users with security and spam protection, as well as great features like Priority Inbox," the company said in a statement.

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