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Does Gmail breach wiretap laws?

Three nonprofit groups say Google's forthcoming service is an "invasion" into private communications. Privacy law experts are skeptical of the claim.

Three nonprofit groups alleged this week that Google's forthcoming Gmail service violates California wiretapping laws--but lawyers who specialize in privacy law were skeptical of the claim.

In a letter sent to California Attorney General Bill Lockyer on Monday, the Electronic Privacy Information Center argued that Gmail must be shut down because it "represents an unprecedented invasion into the sanctity of private communications." Gmail provides one gigabyte of Web-based mail storage in exchange for context-sensitive advertising that appears on the right side of the screen.

"We believe that Gmail violates California's wiretapping laws, subjecting both Google and Gmail users to criminal and civil penalties," said the letter, also signed by the Privacy Rights Clearinghouse and the World Privacy Forum. "Accordingly, we respectfully request that your office investigate the Gmail service."

Stewart Baker, a partner at Steptoe & Johnson who advises technology clients on surveillance-related topics, said EPIC's analysis was flawed. "This is a pretty Luddite notion that if the machine reads my mail, then I've been wiretapped," Baker said. "That would set (Web based) services back quite a ways."

The attempt to pull the plug on Gmail, sent just days after Google published its plans for an initial public offering, claims that the free e-mail service violates Sec. 631 of California's criminal code. That section applies to any person or business who "in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit."

Baker said that because Gmail's terms of use authorize it to review the contents of stored e-mail, any wiretapping allegation would be difficult to make. "There is an effort--we saw it with DoubleClick; we saw it with Intel--to create a dead zone around a technology, to make people think it's dangerous to go there," Baker said. "I think this is a losing strategy. But their view would be that it creates privacy sensitivity. It may slow down the technology, and it's good publicity too."

A spokesman for Lockyer said: "We have received the letter, and we'll review it and decide on an appropriate course of action." The spokesman said he could not recall any previous incident in which the state had forcibly shut down a company's service on privacy grounds. Google did not immediately respond to requests for comment.

A closely allied collection of nonprofit groups has been campaigning fiercely to shut down Gmail, even though the free service is not yet open to the public. EPIC gave an award last month to a California state senator who introduced a bill to block Gmail, and Privacy International has asked government agencies to shut it down. Last week, EPIC raised the question of the FBI's involvement in the design of Gmail, which Google immediately denied.

Jim Harper, a lawyer who runs the privacy advocacy Web site, said Gmail is legal because it reviews only stored e-mail and does not meet the "in transit" definition of a wiretap. In addition, the relatively dumb computer program that matches keywords doesn't meet the California law's "read" or "learn" requirements.

"It's ridiculous," Harper said. "Is a faxed letter that is copied and used in different ways also subject to this interpretation? Maybe there's some future set of computers that comprehend in the way we can agree on, but we're not there yet in artificial intelligence...(The anti-Gmail) groups are intellectually rootless opponents of commerce and progress."