The case against Gmail was heard by Judge Lucy Koh
in the San Francisco Court. Google are accused of illegally wiretapping in the course of everyday activities by way of gathering data on Internet users and displaying related ads. Accusations raised in this lawsuit have been made over several years and relate to the way Google automatically scans email messages and displays relevant ads based on the contents of the mails. The various plaintiffs in this case say that Google has breached state and federal anti-wiretapping laws.
Google argued the case should be dismissed saying it attempted to “criminalize ordinary business practices.” The company said scanning Gmail
messages was an automated process and did not involve human review, it was no different to processes used to detect spam or viruses, carry out in-box searches or filter messages. It also added that users had consented to these activities when they agreed to Google’s terms of service and privacy policies. The company also said that non-Gmail users should not expect privacy when writing to Gmail users. Google argued that wiretapping law exempts the interception of communications if this is necessary to a service provider's normal course of business, which it says includes the scanning of emails.
Judge Koh dismissed Google's arguments. In her ruling she said:
“In fact, Google’s alleged interception of e-mail content is primarily used to create user profiles and to provide targeted advertising — neither of which is related to the transmission of e-mails.”
She also dismissed the argument that users of Gmail consented to email interception and that non-Gmail users communicating with Gmail users were aware their messages would be read. Her ruling stated:
“Accepting Google’s theory of implied consent — that by merely sending e-mails to or receiving e-mails from a Gmail user, a non-Gmail user has consented to Google’s interception of such e-mails for any purposes — would eviscerate the rule against interception.”
Google spokespeople would make no verbal comments after the ruling but published the following statement: “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.”
In a separate case Google asked the Court of Appeals for the Ninth Circuit to reconsider a decision for a separate wiretapping case involving Google Street View
to proceed. The case involves Google Street View vehicles secretly collecting unencrypted data from home computers. Google's request was denied and this case will also proceed.
Both of these cases against Google rely on the Electronic Communications Privacy Act of 1986 which lays down wiretapping regulations. This law has been criticized for many years now as it does not take account of innovations like email.