Late last week, a federal judge found that Google may have breached federal and California wiretapping laws.
The decision by U.S. District Judge Lucy Koh was issued in a proposed class-action suit that accuses Google of wiretapping Gmail as part of its business model. Google filed to have the case dismissed under a section of the Wiretap Act that authorizes e-mail providers to “intercept messages if the interception facilitated the message’s delivery or was incidental to the functioning of the service in general.”
Judge Koh wrote, “Accordingly, the statutory scheme suggests that Congress did not intend to allow electronic communication service providers unlimited leeway to engage in any interception that would benefit their business models, as Google contends. In fact, this statutory provision would be superfluous if the ordinary course of business exception were as broad as Google suggests.”
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Google's Gmail has 450 million users globally.
This decision also leveled a blow to Yahoo for scanning its users’ messages. Yahoo's free e-mail platform has over 300 million users. Outlook's free webmail offering, in contrast, does not scan the messages of its 400 million users.
This latest decision is the second time this month that Google was found potentially liable for wiretapping in federal court.
Google asked a federal appeals court to reconsider a recent ruling that found Google potentially guilty of wiretapping when it secretly intercepted data on open Wi-Fi routers.
Google said the decision rendered on Sept. 10 by the 9th U.S. Circuit Court of Appeals "will create confusion about which over-the-air signals are protected by the Wiretap Act, including broadcast television."
That case is based on all most a dozen combined lawsuits. These lawsuits seek damages from Google for eavesdropping on open Wi-Fi networks from its Street View mapping cars. The vehicles were equipped with Wi-Fi-sniffing hardware to record the names and MAC addresses of routers. Google says it did this to improve their Google location-specific services. The car also gathered bits and pieces of information.
Yesterday Google petitioned the San Francisco appeals court to reconsider its decision. This decision seriously wounds its wiretapping defense in the Gmail case. A trial date has not been set.
“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 emails,” said Jon Simpson, the privacy director for Consumer Watchdog of Santa Monica, Calif.
Google said in a statement that it was “disappointed” with the ruling and was considering its legal options. “Automated scanning lets us provide Gmail users with security and spam protection, as well as great features like Priority inbox,” the company said.
Google is not automatically eligible to appeal the ruling to the 9th U.S. Circuit Court of Appeals. It must ask Koh to grant permission in what is known as an interlocutory appeal. Because of the important legal issue, Koh is likely to grant an appeal rather than having a trial first.
Google maintained that Gmail users have consented to the scanning because of its end-user agreement.
Judge Koh, however, said the agreement did not adequately spell out to consumers that Google was reading messages. What’s more, Koh outright rejected Google’s contention that non-Gmail users consented to the scanning of their messages when their communications interact with Gmail’s platform.
According to Koh:
Google further contends that because of the way that email operates, even non-Gmail users knew that their emails would be intercepted, and accordingly that non-Gmail users impliedly consented to the interception. Therefore, Google argues that in all communications, both parties — regardless of whether they are Gmail users — have consented to the reading of emails. The Court rejects Google’s contentions with respect to both explicit and implied consent. Rather, the Court finds that it cannot conclude that any party — Gmail users or non-Gmail users — has consented to Google’s reading of email for the purposes of creating user profiles or providing targeted advertising. Google points to its Terms of Service and Privacy Policies, to which all Gmail and Google Apps users agreed, to contend that these users explicitly consented to the interceptions at issue. The Court finds, however, that those policies did not explicitly notify Plaintiffs that Google would intercept users’ emails for the purposes of creating user profiles or providing targeted advertising.
Edited by Alisen Downey