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By Kelsey Finch
Westin Fellow

Yesterday, U.S. District Judge Lucy Koh found that Google’s automated scanning of all incoming and outgoing e-mails through its Gmail service—a process it has had in place since 2008—may have breached both federal and state wiretapping laws. The decision, coming at an early stage of the class-action against the Internet giant, nevertheless struck a chord in the privacy world.

Google currently serves over 425 million Gmail users worldwide, but it is alleged to have intercepted and read the e-mails of countless others in order to create user profiles and provide targeted advertising. Not only would the potential class of plaintiffs include- all Gmail users but also any non-Gmail users who have exchanged e-mails with Gmail users over the past five years.

While two state claims were dismissed, the majority of the case will now continue on toward trial, inviting close scrutiny of both the federal and California wiretapping statutes in light of the latest technologies and business practices.

Federal Wiretap: A Narrow Reading

Google first contended that its activities fell within the federal Wiretap Act’s “ordinary course of business” exception. The Court, however, narrowly construed that exception, limiting it to interceptions that are instrumental to providing services or are merely an incidental effect of providing them. It also emphasized that “there must be some nexus between the need to engage in the alleged interception and … the ability to provide the underlying service or good.” Because Google’s alleged interceptions were both physically and purposively unrelated to providing Gmail services, Koh ruled, they were impermissible.

Next, in a particularly headline-gathering argument, Google contended that all e-mail users, whether Gmail accountholders or not, impliedly consented to Google’s intercepting and reading their messages simply by virtue of the technology. Judge Koh flatly rejected this this claim, noting that Google’s theory would “eviscerate” the rule, and reiterated that implied consent applies only in a narrow set of cases, which largely depend on notice principles.

Google’s arguments that its Terms of Service and Privacy Policies created express consent also fell flat. In those papers the Court found users’ consent to filtering, a capacity to intercept (but no stated intent to do so) and potentially misleading privacy policies—but in the absence of language that “explicitly notified e-mail users that Google would intercept their e-mails for (those two) specific purposes,” the Court found no consent to wiretapping.

California Wiretap: A Broad Reading

Google was also alleged to have both intercepted telephone/telegraphic messages and electronically eavesdropped on confidential communications in violation of the California Invasion of Privacy Act (CIPA).

The District Court easily resolved to read the statute broadly enough to encompass e-mail, specifically considering California courts’ prior approval of broad privacy protections and new technologies in the absence of contrary binding authority. The same activities that allegedly brought Google within the scope of the federal wiretap act keep it within CIPA’s reach as well.  

More intriguingly, the Court dismissed the CIPA confidentiality actions, finding that e-mail users could not establish that their e-mails were in fact confidential. Google’s theory that no one can reasonably expect privacy in their e-mail did succeed here: Users should know that their intended recipient can and may easily forward their messages to others. “Nevertheless,” the Court cautioned, “individuals do not consent to third parties’ interception of their emails.”

Other State Claims

Finally, while the above issues have understandably garnered the majority of attention, Google also faces claims arising under Maryland, Florida and Pennsylvania wiretapping laws. While the other states’ laws mirror federal law, Pennsylvania, a single-party consent state, protects only the sender of a communication from wiretapping.

As the tension between consumer protection and business innovation continues to loom large in the privacy world, decisions that attempt to bridge new technologies and old laws become more and more important. This ruling will undoubtedly face future scrutiny, but for now it stands as a significant milestone in the evolution of internet privacy. 

Written By

Kelsey Finch, CIPP/US

3 Comments

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  • Jay Libove Sep 29, 2013

    Regarding: "Google first contended that its activities fell within the federal Wiretap Act’s “ordinary course of business” exception. The Court, however, narrowly construed that exception, limiting it to interceptions that are instrumental to providing services or are merely an incidental effect of providing them. It also emphasized that “there must be some nexus between the need to engage in the alleged interception and … the ability to provide the underlying service or good.” Because Google’s alleged interceptions were both physically and purposively unrelated to providing Gmail services, Koh ruled, they were impermissible." A large question must become, for users of "free" services, which of course are not free but instead are purchased through explicitly, tacitly or ignorantly allowing the service provider to try to profit from the use of information (personal and otherwise) which we put through the services, the ability to access, process and attempt to monetize data (within bounds) is in fact "instrumental" (really, critical) to providing the services on the basis of the "free" deal offered. I'd be interested to see responses from attorneys with experience in the wiretap act and other related areas about Judge Koh's reading of the wiretap act and her interpretation of how Gmail is offered not having, as a requirement to make the service commercially sensible, the ability (within some limits) to access the content beyond simply moving the bits from Sender A to Recipient B?

  • Jason Mark Anderman Nov 19, 2013

    Kelsey, is there a link to this case you could post? Thank you so much.

  • Kelsey Finch Nov 20, 2013

    Jason, you can find a copy of the order on the motion to dismiss here: http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1526&context=historical. Hope this helps!

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