Wiretapping is typically the stuff of spy dramas and shady criminal escapades, but now one of the world’s biggest Web companies — Google — must defend itself against accusations that it is illegally wiretapping in the course of its everyday business, gathering data about Internet users and showing them related ads.
The accusations, made over several years in various lawsuits that have been merged into two separate cases, ask whether Google went too far in collecting user data in Gmail and Street View, its mapping project. Two federal judges have ruled, over Google’s protests, that both cases can move forward.
The wiretapping rulings are the latest example of judges and regulators prodding Google over privacy violations. The company is on the defensive, struggling to convince overseers and its users that it protects consumer data, while arguing that the law is stuck in the past and has failed to keep up with new technologies.
For the most part, Google has managed to avoid major privacy penalties. The Gmail case could have broad effects, though, because nearly half a billion people worldwide use the service, and because if it is, as expected, certified as a class action, the fines could be enormous. At the same time, the case could have long-term consequences for all e-mail services — including those from Yahoo and Microsoft — and for the issue of how confidential is our online data.
“This ruling has the potential to really reshape the entire e-mail industry,” said Eric Goldman, director of the High Tech Law Institute at Santa Clara University School of Law.
The Gmail case involves Google’s practice of automatically scanning e-mail messages and showing ads based on the contents of the e-mails. The plaintiffs include voluntary Gmail users, people who have to use Gmail as part of an educational institution and non-Gmail users whose messages were received by a Gmail user. They say the scanning of the messages violates state and federal anti-wiretapping laws.
“Google uses Gmail as its own secret data-mining machine, which intercepts, warehouses and uses, without consent, the private thoughts and ideas of millions of unsuspecting Americans who transmit e-mail messages through Gmail,” lawyers for the plaintiffs argued on July 11.
On Thursday, US District Court Judge Lucy Koh denied Google’s motion in a 43-page order that fought the company at almost every turn.
In a section of the motion that was widely noted, Google also argued that non-Gmail users had no expectation of privacy when corresponding with Gmail users. Federal wiretap law exempts interception of communication if it is necessary in a service provider’s “ordinary course of business,” which Google said included scanning e-mail. That argument did not fly with Koh.
“In fact, 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,” Koh wrote in last week’s ruling.
Koh also dismissed Google’s argument that Gmail users consented to the interception and that non-Gmail users who communicated with Gmail users also knew that their messages could be read.
“Accepting Google’s theory of implied consent — that by merely sending e-mails to or receiving e-mails from a Gmail user, a non-Gmail user has consented to Google’s interception of such e-mails for any purposes — would eviscerate the rule against interception,” she wrote.