Lawmaker tones down anti-Gmail bill

State Sen. Liz Figueroa (D-Fremont) late Tuesday put the finishing touches on the bill, SB 1822, in a bid to bring the measure to a vote in front of the full Senate before the Legislature recesses on Friday.

The bill was introduced a month ago, when it was heralded as a measure that would prevent Gmail from intruding on users' privacy.

Now, according to a draft seen by CNET News.com, the revised bill omits a provision that would have required Google to win the full and informed consent of non-Gmail users sending e-mail to the service--a hurdle that Gmail advocates widely assumed would be impossible to meet.

In addition, the bill would explicitly allow e-mail and instant-messaging providers to scan the content of messages in order to deliver advertisements, as long as the providers meet certain restrictions on how the data is used. Information gleaned from e-mails cannot be retained, shared with a third party, or shown to any employee or other "natural person," the draft states. In addition, messaging providers must permanently delete messages at the request of customers.

The draft states in part: "A provider of electronic mail or instant-messaging service may review, examine or otherwise evaluate the content of a customer's incoming, outgoing or stored e-mail or instant messages only if the review is for the automated and contemporaneous display of an advertisement to the user while the user is viewing the e-mail or instant message."

The changes come as Google is seeking to fend off an unexpected backlash against Gmail, a Web-based e-mail service that turned heads when it was unveiled in late March with an offer of 1GB of free storage.

Google touted the service as a reinvention of e-mail, one based on a searchable database archive, rather than traditional folder systems. Still, some critics raised concerns that Gmail could subject consumers to unwarranted privacy risks.

First, the amount of storage offered means that customers might never again have to delete e-mail, eventually creating a vast repository of personal correspondence that could be subject to review by police and other outsiders. Second, Google proposed placing ads in messages based on the mail's content, requiring customers to agree to let the company scan their correspondence for keywords.

Figueroa said the changes do not mark a reversal from the bill's original intent. California already requires third-party consent under the state's anti-wiretap law, she said, and therefore it was not necessary to include the provision in her bill.

Three nonprofit groups have asked the California attorney general to review the anti-wiretap law and issue an interpretation regarding third-party consent in regard to e-mail services such as Gmail, although some legal experts believe the claim is weak.

"This will be first law in the nation to ensure that this type of technology is never used to create files on consumers," Figueroa said in an interview. "It forbids e-mail providers from retaining personally identifiable information that is obtained from the use of the technology; it forbids human access to the information; and forbids the transfer of information to third parties. And it requires that when consumers delete e-mail, the file is deleted and is not retained somewhere."

A Google representative declined to comment on the revised bill, saying the company was still reviewing the changes.

Technology lobbyists said the changes appear to be a win for Google, since the revised version reverses key aspects of the original. But most agreed that if the bill becomes law, it will be bad news for technology companies operating in the state.

"Our membership is still upset with this bill," said Roxanne Gould, vice president of California government and public affairs for American Electronics Association, a trade group. "It would appear to have many unintended consequences, for example, preventing filtering aimed at preventing minors from viewing adult material."