Google's reading of Gmail e-mail can be challenged, judge rules

Judge puts stop to company's motion to dismiss class-action suit regarding scanning of Gmail e-mails, says Wiretap Act is applicable.

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A class-action suit targeting Google's scanning of Gmail messages to deliver targeted advertising can go ahead, based on a federal anti-wiretapping law, a judge ruled Thursday.

Google had filed a motion to dismiss the suit, saying that in regard to the Wiretap Act, its scanning of e-mail content was, first, part of the ordinary course of its business as an e-mail provider and, second, something consented to by Gmail users and the people with whom they e-mail.

US District Judge Lucy Koh in San Jose, Calif., bought neither of those arguments, however. In her ruling, she writes in regard to the first point that "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." On the second point she found that Google's various user agreements and privacy policies were not explicit about the company's scanning of e-mail content to serve up tailored ads.

Among other things, Koh writes that "a reasonable Gmail user who read the Privacy Policies would not have necessarily understood that her e-mails were being intercepted to create user profiles or to provide targeted advertisements."

One perhaps surprising point in the case is that Google contended, as Koh's ruling puts it, "that non-Gmail users -- e-mail users who do not have a Gmail account and who did not accept Google's Terms of Service or Privacy Policies -- nevertheless impliedly consented to Google's interception of their e-mails to and from Gmail users."

Koh shoots this one down by saying that "the cases Google cites for this far-reaching proposition hold only that the sender of an e-mail consents to the intended recipients' recording of the e-mail -- not, as has been alleged here, interception by a third-party service provider."

Wired notes that in what's known as an interlocutory appeal, Google must ask Koh for permission to appeal the ruling to the 9th U.S. Circuit Court of Appeals. Koh would likely grant an appeal before going to trial, says Wired, because of the important legal issues involved.

Koh's ruling "is a historic step for holding Internet communications subject to the same privacy laws that exist in the rest of society," John M. Simpson, privacy project director with Consumer Watchdog, said in a statement. "The court rightly rejected Google's tortured logic that you have to accept intrusions of privacy if you want to send email. 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 e-mails."

Koh also nixed Google's moves to dismiss the suit under several California state laws, but she granted two such dismissal motions.

A Google spokesperson provided the following statement on the ruling: "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."

Order on Google's motion to dismiss